1970s Love Canal

• In the 1970s, Love Canal was a major environmental disaster where large amounts of abandoned, buried hazardous waste caused extensive contamination of an area in New York.

The most controversial hazardous waste site was Love Canal in Niagara Falls, New York. Large amounts of abandoned, buried hazardous waste caused extensive contamination of the area, declaration of the area as a disaster by the federal government, and eventual relocation of most area residents. While the disaster came to a head in the 1970s, its history started much earlier.

In the late 1800s and early 1900s, a man named William T. Love owned some land in New York along the eastern edge of Niagara Falls. Love had a vision of creating a dream community. He was given permission by the New York Governor to dig a canal between the upper and lower Niagara Rivers to generate power for his dream city. Love began digging the canal in 1894, but an economic depression and the discovery that electricity could be transmitted long distance using alternating current put an end to his dream. In 1910 his land was sold at a public auction.

By the 1920s the city of Niagara Falls and several chemical companies started using the partially dug canal as a disposal site until 1953 when the site was covered with soil and sold to the city for one dollar. By the late 1950s homes and a school were being built right next to the Love Canal landfill.

However, in the 1970s city residents started noticing chemical odors in their basements after a period of heavy rains. That was just the beginning of the leaching. Soon after, waste drums broke through the ground in backyards, vegetation died, and there were pools of hazardous substances collected in yards, basements, and on school grounds.

The residents noticed ill effects from the chemicals seeping all around them including children with chemical burns on their skin from playing outside, birth defects, nervous disorders, and high white-blood-cell counts.

This was a major environmental disaster, which came to be called “Love Canal.” The state of New York bought the homes that were affected and moved families out of the area, and President Carter approved emergency funds for financial aid.

Efforts to analyze the chemicals present showed there were over 80 different chemicals onsite. Air samples proved there were toxic vapors that posed a serious health threat. The most prevalent chemical, which was found in high concentrations, was benzene, a known carcinogen.

1970s Valley of the Drums

• The Valley of the Drums in Kentucky was a disaster where hazardous substances were leaching into a nearby creek due to deteriorating conditions of hazardous waste drums.

Considerable publicity was also devoted to other sites such as the Valley of the Drums. Again, while this disaster made headlines in the 1970s, the problem began over a decade earlier.

The environmental disaster took place in a rural setting just outside of Louisville, Kentucky on a 23-acre parcel of land that had become a toxic dumping ground sometime in the early 1960s. It was first discovered in 1966 when some of the drums caught fire, and it took over a week for firefighters to put out the blaze that spewed toxic fumes.

About 13 of the landowner’s 23-acres were used to dump hazardous waste drums. In fact, there were over 17,000 drums littering the surface of the land. The landowner continued to use the land as a dumping site, and by 1975 as a Kentucky environmental agency was conducting investigations, it discovered hazardous substances were leaching into a nearby creek due to deteriorating conditions of the drums.

The agency subsequently took legal actions against the landowner and finally ordered the landowner to cease operations in 1977. The landowner died later that year.

Once investigations and cleanup began, over 100,000 drums were discovered on the property. Many of the drums were in poor condition and leaking into the soil and the waters of Wilson Creek, a tributary to the Ohio River.

Around 140 different chemical compounds were found on the land, and it took years to clean up the site later known as the “Valley of the Drums.”

1976 RCRA and 1980 CERCLA

• RCRA of 1976 established a regulatory system to manage hazardous wastes from the time they are generated to their final disposal.
• CERCLA’s passage in 1980 launched the Superfund program, which gave the federal government, authority to take direct action to respond to emergencies involving uncontrolled releases of hazardous substances.

1976 RCRA

Passage of the Resource Conservation and Recovery Act (RCRA) was the first comprehensive federal effort to deal with the hazardous waste problem. RCRA established a regulatory system to manage hazardous wastes from the time they are generated to their final disposal. RCRA also imposes standards for transporting, treating, storing, and disposing of hazardous wastes. It is designed to prevent the creation of new hazardous waste sites by authorizing the Environmental Protection Agency (EPA) to take administrative, civil, and criminal actions against facility owners and operators who do not comply with RCRA requirements.

1980 CERCLA

Many hazardous waste disposal sites were created prior to the passage of RCRA. These sites were often abandoned and contained unknown quantities of unknown wastes. The discovery and subsequent publicity of hazardous waste sites such as Love Canal and Valley of the Drums made it acutely apparent that existing regulatory requirements were not enough.

The federal government sought to obtain the authority needed to deal with threats from hazardous substance sites to human health and the environment. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was designed to provide this authority. CERCLA’s passage in 1980 launched the Superfund program. This Act gave the federal government, for the first time, authority to take direct action or force the responsible party to respond to emergencies involving uncontrolled releases of hazardous substances. The statute also required the federal government to develop longer-term solutions for the nation’s most serious hazardous waste problems.

CERCLA gave authority to the President who, in turn, issued Executive Order 12316 delegating primary responsibility to EPA for managing activities under the Superfund program. The activities under the Superfund program include:

• Identifying sites where releases of hazardous substances had already occurred or might occur and pose a serious threat to human health, welfare, or the environment;
• Taking appropriate action to remedy such releases; and
• Ensuring that parties responsible for the releases pay for the cleanup actions. This payment could be either the initial funding of cleanup actions or the repayment of federal funds spent on response actions.

To pay for federal response actions, CERCLA created a Trust Fund, or “Superfund,” of $1.6 billion. This Trust Fund was financed primarily with a tax on crude oil and 42 commercially-used chemicals. The tax supports the concept that those responsible for environmental pollution should assume the cost. Thus, even though the Superfund program may finance the response action, recovery of these federal funds is sought from those parties responsible for the hazardous release.

It should be noted that in November of 1990, Congress extended Superfund’s statutory authority through 1994 and the taxing authority through 1995. However, these taxes expired in 1995 and have not been reauthorized by Congress since.

1986 SARA

• SARA helped strengthen and expand the Superfund cleanup program and increased the CERCLA Trust Fund.

On October 17, 1986, Congress passed amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), called the Superfund Amendments and Reauthorization Act (SARA). This law made several important changes and additions to the Superfund Program that strengthened and expanded the cleanup program.

SARA increased the size of the CERCLA Trust Fund to $8.5 billion and refined its financing. SARA also stresses developing and using permanent remedies. In addition, SARA provided new enforcement authorities and settlement tools, required changes in the system used to determine which sites should be addressed, and increased state involvement in the Superfund process.

SARA included a free-standing statute, Title III, also known as the Emergency Planning and Community Right to Know Act (EPCRA). This statute increased community awareness and access to information regarding the presence of extremely hazardous chemicals in their community. With this information, communities can develop a local emergency response plan to help mitigate the effects of a chemical incident.

Applicability determination

• There are certain criteria that must always be met to trigger notification to the National Response Center (NRC).
• Other factors are also involved in an applicability determination.

There are five specific conditions that must be met to trigger the CERCLA requirement for notifying the NRC. There must be a:

• Release
• Of a hazardous substance
• That equals or exceeds a reportable quantity
• From a vessel or facility
• Within a 24-hour period.

Other factors are also involved in making an applicability determination. These factors involve the petroleum exclusion, the term “into the environment,” and mixtures.

Notification requirements

• The NRC must be notified when there is a release of an RQ of a hazardous substance into the environment according to CERCLA.

Any person in charge of a vessel or an offshore or an onshore facility shall, as soon as the person has knowledge of any release (other than a federally permitted release or application of a pesticide) of a hazardous substance from such vessel or facility in a quantity equal to or exceeding the reportable quantity determined by this part in any 24-hour period, immediately (as soon as possible) notify the National Response Center (NRC).

Simply put, the NRC must be notified when there is a release of a reportable quantity (RQ) of a hazardous substance into the environment according to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 103(a) and 40 CFR 302.6. To fulfill the requirements, the person in charge of the vessel or facility must report the release of a hazardous substance to the NRC at (800) 424-8802, as soon as it is determined that an RQ has been released into the environment within a 24-hour period.

The purpose of the notification is to alert government officials that an emergency response may be needed to protect human health and the environment. The decision to respond to a reported release is made on a case-by-case basis. Reporting a release does not free the responsible party from liability for cleanup costs.

When a person calls to report a release, the NRC asks a series of questions. Upon receipt of the report, the NRC will notify the on-scene coordinator (OSC) at the appropriate Environmental Protection Agency (EPA) regional office or U.S. Coast Guard district office. The OSC informs state and local officials and decides on the federal government’s response. NRC also puts the data into a report that appears on its website.

The owner or operator of any vessel or facility from which a hazardous substance has been released must “provide reasonable notice to potential injured parties by publication in local newspapers serving the affected area” in addition to the NRC notification (CERCLA 111(g)). This is a statutory provision that has not yet been clarified in specific regulations.

Special issues

• A continuous release is a release of a hazardous substance that is continuous and stable in quantity and rate.
• A release of a substance that rapidly forms a CERCLA hazardous substance upon release is a reportable event.
• Transportation-related releases must be reported immediately to the NRC.

There are several issues relating to CERCLA release reporting that need special attention. These topics augment previously discussed material. Knowledge of these special issues is essential to fully understanding CERCLA.

Continuous releases

The Environmental Protection Agency (EPA) defines a continuous release as a release of a hazardous substance that is continuous and stable in quantity and rate. EPA interprets “continuous” to mean a release that occurs without interruption or abatement that is routine, anticipated, and intermittent during normal operation or treatment process. “Stable in quantity and rate” means predictable and regular in amount and rate of emission.

A continuous release may be a release that occurs 24 hours a day, such as a radon release from a stockpile. It may also be a release that occurs during a certain process, such as benzene released during the production of polymers, or a release of a hazardous substance from a tank vent each time the tank is filled.

Releases from malfunctions may qualify for reduced reporting as continuous releases if they:

• Are normal plant operation or treatment processes;
• Are stable in quantity and rate; and either
  • Occur without interruption of abatement, or
  • Are routine, anticipated, and intermittent.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 103(f)(2) provides a reduced reporting requirement for continuous releases of hazardous substances that exceed the reportable quantity (RQ). The reduced reporting requirements are spelled out at 40 CFR 302.8.

Disposal at RCRA facilities

The disposal of hazardous substances into a disposal facility in accordance with EPA regulations is not subject to CERCLA notification provisions. Where the disposal of wastes into permitted or interim status facilities is properly documented through the Resource Conservation and Recovery Act (RCRA) manifest system and RCRA regulations are followed, notification under CERCLA does not provide a significant additional benefit, if the facility is in compliance with all applicable regulations and permit conditions.

For example, if a waste generator or building owner or operator properly disposes of lamps containing one pound or more of mercury into a RCRA-permitted facility during a 24-hour period, the generator or owner or operator would not be required to report the release under CERCLA.

Where the person in charge knows that the facility is not in substantial compliance, that person must report the disposal of an RQ or more of a hazardous substance to the National Response Center (NRC). Of course, spills and accidents occurring during disposal that result in the release of an RQ or more of a hazardous substance must also be reported to the NRC.

Substances that change after release

A release of a substance that rapidly forms a CERCLA hazardous substance upon release is a reportable event. For example, a metal chloride, which is not specifically listed as a hazardous substance under CERCLA, readily changes to hydrochloric acid when it comes in contact with water. Hydrochloric acid is specifically listed as a hazardous substance under CERCLA and, therefore, must be reported if an RQ or more is released in a 24-hour period.

EPA has not clarified the term “rapidly,” nor listed all substances that rapidly form hazardous substances when released.

Transportation-related releases

Under CERCLA 103(a), even transportation-related releases must be reported immediately to the NRC.

Other laws that trigger release reporting

• EPCRA, HMTA, TSCA, and CWA may also trigger reporting requirements at the time of a release of a hazardous substance or material.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not the only statute that addresses spills and releases. Other laws may also trigger reporting requirements at the time of a release of a hazardous substance or material. These include:

• The Emergency Planning and Community Right-to-Know Act (EPCRA), administered by the Environmental Protection Agency (EPA), requires facilities to notify State Emergency Response Commissions and Local Emergency Planning Committees of releases of hazardous substances and extremely hazardous substances when the release equals or exceeds the reportable quantity (RQ) (EPCRA 304(a)).
• The Hazardous Materials Transportation Act (HMTA), administered by the Department of Transportation (DOT), requires reporting of hazardous materials releases or accidents.
• The Toxic Substances Control Act (TSCA), administered by EPA, requires reporting of releases of polychlorinated biphenyls (PCBs).
• The Clean Water Act (CWA), administered by EPA, requires reporting of hazardous substance and oil releases into navigable waters.

Discovery, assessment, inspection, and removal actions

• The NRC has a 24/7 hotline to receive information regarding potentially hazardous releases of oil, chemical, radiological, and biological substances.
• During preliminary assessment and site inspection, EPA determines if the site poses a threat to people and the environment and whether hazards need to be addressed immediately or additional site information will be collected.
• A removal action is a short-term action intended to stabilize or clean up an incident or site that poses an imminent threat to human health or the environment.

Contamination discovery

The Environmental Protection Agency (EPA) continues its effort to identify potentially hazardous sites or releases that might otherwise go unreported. Many site discoveries result from information and reports from states, communities, local authorities, businesses, and citizens. The National Response Center (NRC) has a 24/7 hotline to receive information regarding potentially hazardous releases of oil, chemical, radiological, and biological substances.

All reports of releases that are addressed or need addressing under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Superfund program are inventoried and tracked in EPA’s comprehensive data management system called the Superfund Enterprise Management System (SEMS). While the system includes information for potential and confirmed hazardous waste sites addressed under the Superfund remedial and removal programs, it should be noted that inclusion of a specific site or area in SEMS does not represent a determination of any party’s liability, nor does it represent a finding that any response action is necessary.

Preliminary assessment and site inspection

This stage includes a review of historical information and visiting a site to evaluate the potential for a release of hazardous substances. EPA determines if the site poses a threat to people and the environment and whether hazards need to be addressed immediately or additional site information will be collected. Often in conjunction with the site inspection, EPA makes every effort to search for and identify potentially responsible parties. Any person or organization can report spills and environmental violations and petition the EPA to conduct a preliminary assessment.

Removal actions

A removal action is a short-term action intended to stabilize or clean up an incident or site that poses an imminent threat to human health or the environment. Removal actions may be conducted, for example, to clean up the spill of hazardous materials when a truck or train overturns, to keep the public from being exposed to hazardous substances, or to protect a drinking water supply from contamination.

Environmental problems such as area-wide contamination of ground water are not normally addressed during removal actions. However, removal actions may reduce the cost of longer-term cleanup by controlling the migration of the hazardous substance or by eliminating the source of the additional contamination. Therefore, removal actions may occur at National Priorities List (NPL) and non-NPL sites.

Site listing and remedial investigation, selection, design, and action

• The NPL site listing is a list of the worst hazardous waste sites identified by Superfund.
• RI/FS involves an evaluation of the nature and extent of contamination at a site and assessing potential threats to human health and the environment.
• The ROD explains which cleanup alternatives will be used at NPL sites.
• Detailed cleanup plans are developed and implemented during the RD/RA stage.

NPL site listing process

The national priorities list (NPL) is primarily an information resource that identifies sites that warrant cleanup. It is a list of the worst hazardous waste sites identified by Superfund. The list is largely based on the score a site receives from the Hazard Ranking System, a numerically based scoring system that uses information from the preliminary assessment, the site inspection, and an expanded site inspection if necessary to assess the relative potential of sites to pose a threat to human health or the environment.

Note that Hazard Ranking System (HRS) scores do not determine the priority in funding EPA remedial response actions, because the information collected to develop HRS scores is not sufficient to determine either the extent of contamination or the appropriate response for a particular site. The sites with the highest scores do not necessarily come to the EPA’s attention first; this would require stopping work at sites where response actions were already underway. EPA relies on more detailed studies in the remedial investigation/feasibility study which typically is the next step after listing.

Remedial investigation and feasibility study (RI/FS)

This stage involves an evaluation of the nature and extent of contamination at a site and assessing potential threats to human health and the environment. As information on the extent of contamination becomes known, the feasibility study is begun. This study includes evaluation of the potential performance and cost of the treatment options identified for a site. These options may include removal of hazardous substances from the site and moving them to an licensed hazardous waste facility approved by the Environmental Protection Agency or state for treatment, containment, or destruction; safely containing the waste onsite; or destroying or treating the waste onsite through incineration or other treatment technologies.

ROD and remedy selection

The Record of Decision (ROD) explains which cleanup alternatives will be used at NPL sites. Leading up to the issuance of the ROD, EPA recommends a preferred remedy and presents the cleanup plan to the public for comment (in a document called a Proposed Plan). Following the public comment period, EPA selects a final remedy and issues a final ROD.

Remedial design and remedial action (RD/RA)

Detailed cleanup plans are developed and implemented during the RD/RA stage. RD includes development of engineering drawings and specifications for a site cleanup. The design phase can take up to one year, and, in some cases, even longer. RA follows design and involves the actual construction or implementation phase of site cleanup. The time required to complete the remedy varies according to the complexity of the remedy.

It should be noted that EPA often conducts both removal and remedial actions at NPL sites. Removal actions may be required during a remedial action if an immediate threat is discovered during the remedial work.

Site completion and post construction O&M

• Once the remedy implemented is operational and functional and meets its designated environmental, technical, legal, and institutional requirements, it will be considered a site completion.
• Activities undertaken during the O&M phase help ensure that cleanup work at a site continues to protect human health and the environment.

Site completion

Following remedial actions, steps must be followed to ensure that the cleanup methods are working properly. Once the remedy implemented is operational and functional and meets its designated environmental, technical, legal, and institutional requirements, it will be considered a site completion.

This milestone indicates all physical construction required for the cleanup of the entire site has been completed (even though final cleanup levels may not have been achieved). For example, a groundwater treatment system has been constructed though it may need to operate for a number of years for all contaminants to be removed from the groundwater.

Post construction operation and maintenance (O&M)

Activities undertaken during this phase help ensure that cleanup work at a site continues to protect human health and the environment. Work can include routine monitoring of a site; routine reviews of the site to ensure cleanup continues to be effective; and enforcing any long-term site restrictions (e.g., institutional controls).

The responsibility for O&M activities, if any, are ultimately assumed by the states or the potentially responsible parties (PRPs). However, the Environmental Protection Agency (EPA) is responsible for actively reviewing O&M activity and schedule throughout the life of the remedy.

Closeout, NPL site deletion, and reuse

• Once a response action has been completed, closing out the site depends on whether removal or remedial actions had been taken.
• Consideration of reuse at a site can occur at any point in the Superfund cleanup process.

Closeout and NPL site deletion

Once a response action has been completed, closing out the site depends on whether removal or remedial actions had been taken.

• Following removal actions, the Environmental Protection Agency (EPA) must ensure that all waste is properly disposed, that all equipment is decontaminated and demobilized, that temporarily relocated citizens are returned to their homes, and that response-related damages are remedied, i.e., the site is restored. The actual completion date of a removal is defined as the date when all previously specified work is completed and the contractor, potentially responsible parties (PRPs), and EPA representatives have permanently demobilized.
• Following remedial responses, once a site is certified to be complete, EPA submits its intention to delete the site from the National Priorities List (NPL) by publishing a notice in the Federal Register. However, it should be noted that EPA cannot certify site completion and consider NPL deletion if the hazardous substance is still located onsite, e.g., a containment remedy was used. If the hazardous substance remains onsite, a five-year review of the site must be conducted before the site can be considered for NPL deletion.

As a part of site closeout, a closeout report is prepared to document that the state or PRP will ensure operation and maintenance (O&M) activities are performed, and that EPA has completed its responsibilities.

Once cleanup goals have been achieved and sites are fully protective of human health and the environment, EPA deletes them from the NPL. EPA publishes a notice of its intention to delete the site, or portion of the site, from the NPL in the Federal Register, and notifies the community of the opportunity for comment. EPA then accepts comments from the public and formally responds to public comments received. If, after the formal comment period, the site or portion of the site still qualifies for deletion, EPA publishes a formal deletion notice in the Federal Register and places a final deletion report in the administrative record for the site.

Site reuse and redevelopment

EPA’s goal is to make sure site cleanup is consistent with the likely future use of a site. Consideration of reuse at a site can occur at any point in the Superfund cleanup process, from site investigation activities to deletion from the NPL. EPA works with communities to make sure sites or portions of sites are used safely.

Superfund revenues, spending, claims, and reimbursement

• To fund program activities, CERCLA established a trust fund that was financed primarily by taxes on crude oil and certain chemicals, as well as an environmental tax assessed on corporations based upon their taxable income.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) authorizes the Environmental Protection Agency (EPA) to compel responsible parties to clean up contaminated sites and allows EPA to conduct cleanups and then seek reimbursement from the responsible parties. One of EPA’s goals is ensuring that, to the extent possible, parties who are responsible for the contamination perform or pay for cleanup actions. In some cases, however, parties cannot be identified or may be unwilling or financially unable to perform the cleanup.

In these cases, EPA can assume responsibility for site cleanup and seek reimbursement from any responsible parties that can be identified. States may also play a significant role in cleaning up hazardous waste sites. Most states have established programs to help address hazardous waste sites; although, many states have limited capacity to address costly and complex sites.

Superfund taxes

To fund program activities, CERCLA established a trust fund (also known as the Superfund) that was financed primarily by taxes on crude oil and certain chemicals, as well as an environmental tax assessed on corporations based upon their taxable income. These crude oil and chemical taxes expired in 1995 but returned on January 1, 2023, and July 1, 2022, respectively.

The Inflation Reduction Act (Public Law 117-169), signed on August 16, 2022, reinstated the Hazardous Substance Superfund financing rate on domestic crude oil and imported petroleum products, effective January 1, 2023. The petroleum oil spill tax rate is $0.09 per barrel, but the petroleum Superfund tax rate is $0.164 per barrel for 2023 and indexed annually for inflation. See Internal Revenue Code 26 U.S.C. 4611. This petroleum tax is reported on Form 720, Quarterly Federal Excise Tax Return, and Form 6627, Environmental Taxes.

Effective July 1, 2022, the Infrastructure Investment and Jobs Act (Public Law 117-58) reauthorized the Superfund chemicals excise tax through December 31, 2031, at double the rates that were in effect in 1995. New chemicals are also covered. See Internal Revenue Code 26 U.S.C. 4661 through 4672. The Superfund chemical taxes will be reported on Form 720, Quarterly Federal Excise Tax Return, and Form 6627, Environmental Taxes.

The Internal Revenue Service (IRS) website has an Excise Tax topic page that offers links to information on the:

• Petroleum Tax — Hazardous Substance Superfund Financing Rate Reinstated; and
• Superfund Chemical Excise Taxes Reinstated.

Other sources of Superfund revenues

Some tax revenues continue to accrue to the fund as audits of past years’ tax returns have led to the recovery of Superfund taxes previously owed by companies. In addition, the trust fund may continue to receive revenue from:

• General fund appropriations approved by Congress (these dollars come from the U.S. taxpayers);
• Interest generated by the trust fund; and
• Fines, penalties, and recoveries.

Use of the trust fund and claims procedures

Each year, appropriations laws stipulate the level of the annual EPA Superfund program appropriation from the trust fund, and, regardless of the balance of the fund, EPA can only expend what is appropriated. In recent years this annual budget total has been over one billion dollars.

Congress appropriates to EPA money from the Hazardous Substance Superfund for the activities described in Section 111 of the CERCLA. Such activities include cleanups; claims for damage to natural resources; research, development, and demonstration; and reimbursement to local governments that have conducted cleanup activities. Specific restrictions are applied to each type of activity. Reimbursement provisions are also found at 40 CFR 310.

The procedures for asserting a claim against the fund are detailed in Section 112, which also sets time constraints, known as statutes of limitations, on claims made against the fund. Claims provisions are also found at 40 CFR 304, 305, and 307.

Reimbursement of local governments

CERCLA 123 authorizes EPA to reimburse local governments up to $25,000 for expenses they might incur while taking temporary emergency measures in response to hazardous substance threats. To qualify for reimbursement, these emergency measures must be necessary to prevent or mitigate injury to human health or the environment. The regulations for implementing reimbursement to local governments can be found in 40 CFR 310.

All appropriate inquiries, liability, and financial responsibility

• CERCLA offers certain protections to anyone who unknowingly purchases contaminated property – provided the prospective landowner took certain precautions.
• There are three possible defenses to liability: an act of God, an act of war, or action or omission by a third party under certain circumstances.
• A person may challenge any regulation promulgated under CERCLA, only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit.

All appropriate inquiries

An innocent landowner is a person who, after making “appropriate inquiry” into previous ownership and uses of the property, purchased or acquired the property without knowledge of the presence of hazardous substances on the property. CERCLA 101(35)(B) offers certain protections to anyone who unknowingly purchases contaminated property – provided the prospective landowner took certain precautions. Making “all appropriate inquiries” is a process of evaluating a property’s environmental conditions and assessing potential liability for any contamination and is a required step for obtaining CERCLA protection.

EPA established regulations pertaining to all appropriate inquiries at 40 CFR 312. The regulation requires that the results of an all appropriate inquiries investigation be documented in a written report. While no format, length, or structure is specified, EPA suggests potential content for the report and recommends prospective landowners meet site assessment procedures in the American Society for Testing and Materials standards listed at 40 CFR 312.11.

Liability

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 107 outlines who can be held liable for contamination pursuant to CERCLA and the costs this liability encompasses. These are known as responsible parties (RPs). When the Environmental Protection Agency (EPA) is investigating contamination at a site, any person potentially covered by 107(a) can be designated as a potentially responsible party (PRP). RPs include the current owner and operator of a contaminated property, any person who at the time of disposal of hazardous substances owned or operated the property, or any person who arranged for disposal or transportation of hazardous substances at a property where a release has occurred. Section 107(b) provides three possible defenses to liability: an act of God, an act of war, or action or omission by a third party under certain circumstances. Section 107 also provides several exemptions from liability such as the normal application of a registered pesticide product (107(i)).

Financial responsibility

CERCLA 108(b) requires that EPA promulgate regulations concerning financial responsibility to cover liability under 107 of the Act. These regulations would require that any facility responsible for managing hazardous substances prove that it has the means to pay for any potential contamination at the site. However, no regulation to implement 108(b) of the statute has been promulgated to date.

Litigation, citizens actions, and settlements

• General legal procedures applicable to CERCLA actions are established in Section 113.
• Citizens have authority to bring a civil action against any other person (including the U.S.) for violation of any standard, regulation, condition, requirement, or order under CERCLA.
• EPA can reimburse local governments up to $25,000 for expenses they might incur while taking temporary emergency measures in response to hazardous substance threats.

Litigation, jurisdiction, and venue

General legal procedures applicable to actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) are established in Section 113. According to 113, a person may challenge any regulation promulgated under CERCLA, only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit. A petition must be filed within 90 days of the date of promulgation of the regulations.

There are statutes of limitations for actions to recover response costs and damages to natural resources. According to 113(b), if an action is filed as the result of a release, venue will lie in any district in which the release occurred or in which the defendant resides.

CERLCA 113(f) provides for the legal remedy of contribution, which allows one potentially responsible party (PRP) to bring suit against another PRP for the latter’s share of response costs.

Citizen civil actions

CERCLA 310 grants citizens authority to bring a civil action against any other person (including the U.S.) for violation of any standard, regulation, condition, requirement, or order under CERCLA. A civil action may also be brought against the President or other government official for failure to perform any nondiscretionary duty under CERCLA. The district court in which the action is brought has the jurisdiction to enforce the standard, regulation, condition, requirement, or order, and order action to correct the violation and impose any civil penalty provided for the violation. The court also has the jurisdiction to order the President or any other government official to perform the act or duty concerned.

Settlements

CERCLA 122 sets forth different types of legal agreements that can be entered into between the Environmental Protection Agency (EPA) and PRPs to conduct a response action or pay response costs at a site. Section 122 grants EPA the authority to enter into agreements with PRPs and encourages the PRPs to enter into these settlements by offering them protection from further liability if they enter into and fulfill such agreements. When an agreement is issued for a remedial action, it must be in the form of a consent decree and must be filed in the appropriate U.S. District Court.

Resource Conservation and Recovery Act (RCRA)

• RCRA was enacted to address how to safely dispose of the huge volumes of hazardous and non-hazardous municipal and industrial waste generated nationwide and to ensure the prevention of future releases.

The Resource Conservation and Recovery Act (RCRA), an amendment to the Solid Waste Disposal Act, was enacted in 1976 to address a problem of enormous magnitude — how to safely dispose of the huge volumes of hazardous and non-hazardous municipal and industrial waste generated nationwide and to ensure the prevention of future releases. Solid waste, by definition, includes traditional non-hazardous wastes such as municipal refuse and liquid, semi-solid, or gaseous material from industrial, commercial, and mining operations, as well as hazardous waste.

The goals set by RCRA are:

• To protect human health and the environment;
• To reduce waste, and conserve energy and natural resources; and
• To reduce or eliminate the generation of hazardous waste as expeditiously as possible.

RCRA originally provided regulatory authority to address hazardous waste management but had limited authority to require cleanup. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was enacted in 1980 to fill the gap in RCRA and the Clean Water Act authority for remedying past mismanagement of hazardous substances.

The 1984 Hazardous and Solid Waste Amendments (HSWA) significantly expanded the scope and requirements of RCRA. Regulations have been developed and continue to be expanded based on the HSWA provisions, e.g., land disposal restrictions. In addition, HSWA expanded the Environmental Protection Agency’s (EPA’s) authorities to address releases of hazardous waste or hazardous constituents through “corrective actions” or cleanup of wastes released from RCRA hazardous waste facilities. Furthermore, a new program for regulating underground storage tanks was developed under RCRA Subtitle I.

CERCLA is most impacted by RCRA Subtitle C, the Hazardous Waste Management Program. The RCRA Subtitle C standards for managing hazardous waste affect many CERCLA response decisions, such as which off-site disposal facility to use or which regulatory requirements to consider in implementing onsite response actions.

Oil Pollution Act (OPA)

• OPA prohibits the discharge of oil and certain hazardous substances in quantities that may be harmful.
• OPA established the Oil Spill Liability Trust Fund to pay for federal responses to oil spills.

The Oil Pollution Act of 1990 (OPA) amends 311 of the Clean Water Act (CWA). Section 311 prohibits the discharge of oil and certain hazardous substances in quantities that may be harmful to public health or welfare (OPA revised this to include the environment). OPA established the Oil Spill Liability Trust Fund to pay for federal responses to oil spills. Section 311 also authorizes the oil Spill Prevention, Control, and Countermeasure (SPCC) program.

OPA is a comprehensive statute designed to:

• Expand the federal role in response activities;
• Increase trust funds available for cleanup costs and other damages;
• Improve preparedness and response capabilities of federal agencies and owners or operators of vessels and facilities;
• Ensure that responsible parties pay for damages from spills that do occur (subject to liability limits);
• Increase vessel safety through requirements for double hulls; and
• Establish an expanded oil pollution research and development effort.

Clean Water Act (CWA)

• The CWA is designed to ensure that the nation’s waters are safe to the public and support fish and other aquatic life.
• The CWA has authority for responding to discharges of oil into the waters of the U.S.

The Clean Water Act (CWA) was enacted to regulate and cleanup polluted waters in the United States. It is designed to ensure that the nation’s waters are safe to the public and support fish and other aquatic life. Specifically, the CWA is designed to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.

The CWA was one of the major environmental laws passed by Congress in the 1970s. It provides the Environmental Protection Agency (EPA) with two types of authority:

• Regulatory — To prevent and control discharges of pollutants into waters of the U.S.
• Response — To respond to releases of pollutants into waters of the U.S. Prior to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), EPA and United States Coast Guard (USCG) worked under the CWA to clean up releases of oil and hazardous substances into the navigable waters of the U.S.

The CWA requires that all direct discharges to surface water comply with technology-based discharge standards. These standards require the use of best practicable control technology (BPCT) for conventional pollutants (e.g., suspended solids or fecal coliform) and best available technology (BAT) economically achievable for toxic (e.g., benzene or chloroform) and non-conventional (e.g., ammonia, nitrogen, or total solids) pollutants. EPA has published effluent guidelines for specific categories of industries. These guidelines are translated into specific effluent requirements in discharge permits.

The CWA requires a permit for any discharge into the nation’s waterways. For wastewater, only two discharge options are allowed:

• Direct discharge into surface water pursuant to a National Pollutant Discharge Elimination System (NPDES) permit; and
• Indirect discharge, which means that the wastewater is first sent to a publicly owned treatment works (POTW), and then after treatment by the POTW, discharged into surface water pursuant to an NPDES permit.

The NPDES permit is granted on a case-by-case basis and the terms of the permit depend on a number of variables. Essentially, the NPDES permit limits the permissible concentration of toxic constituents or conventional pollutants in effluents discharged to a waterway.

If the indirect discharge option is chosen, the generator of the wastewater cannot simply transfer the pollutants to a POTW. Rather, the wastewater must satisfy applicable pretreatment standards, where they exist.

Section 304 of the CWA directs EPA to publish water quality criteria for specific pollutants. EPA develops two types of criteria: one for the protection of human health and another for protection of aquatic life. These water quality criteria are non-enforceable guidelines used by states to set water quality standards for surface water. Section 303 requires states to develop water quality standards, based on federal water quality criteria, to protect existing or attainable uses (e.g., recreation, water supply) of surface waters.

How the CWA and CERCLA interact

The CWA-designated hazardous substances are incorporated into the CERCLA definition of hazardous substances. The CWA has authority for responding to discharges of oil into the waters of the U.S. The CWA 311 and CERCLA have similar response authorities for responding to discharges of CWA hazardous substances released into U.S. waters. In addition, CERCLA provides response authority for responding to discharges of other hazardous substances, pollutants, and contaminants into the environment. The NCP, the blueprint for managing responses to releases, governs both CWA and CERCLA responses.

Onsite CERCLA responses must comply with or waive substantive requirements of federal and state environmental laws that are determined to be applicable or relevant and appropriate requirements (ARARs). CWA and state discharge and water quality standards may be ARARs for onsite remedial actions at Superfund sites. The application of CWA and state ARARs is determined on a case-by-case basis. CERCLA responses conducted entirely onsite do not require CWA permits.

Clean Air Act (CAA)

• The CAA was enacted to limit the emission of pollutants into the atmosphere to protect human health and the environment from the effects of airborne pollution.
• For six pollutants, EPA has established NAAQS.
• The CAA hazardous air pollutants are included as CERCLA hazardous substances.

The Clean Air Act (CAA) was the first major environmental law passed by Congress. The CAA was enacted to limit the emission of pollutants into the atmosphere to protect human health and the environment from the effects of airborne pollution. The CAA authorizes the Environmental Protection Agency (EPA) to achieve this objective by setting air quality standards and regulating emissions of pollutants into the air. EPA has established emission standards for mobile (e.g., automobiles) and stationary (e.g., factories) sources of pollutant emission. These are implemented through federal, state, and local programs.

For six pollutants, EPA has established National Ambient Air Quality Standards (NAAQS). Regulation of these six pollutants affords the public some protection from toxic air pollutants. Primary responsibility for meeting the requirements of the CAA rests with states, who must submit state implementation plans (SIPs) to achieve and maintain the NAAQS. Pursuant to the SIP, new or modified stationary sources of air emissions must undergo pre-construction review to determine whether the facility will interfere with attainment or maintenance of NAAQS. In addition, in some areas that do not attain NAAQS, SIPs must contain regulatory strategies to control emissions from existing stationary sources. SIPs, not NAAQS, are potential applicable or relevant and appropriate requirements (ARARs). Of chief concern to Superfund are the requirements that apply to sources of volatile organic compounds (VOCs) and other toxic air pollutants (e.g., heavy metals).

Section 112 of the CAA directs EPA to identify hazardous air pollutants and to establish emission standards for sources that emit the pollutants. These standards, known as National Emission Standards for Hazardous Air Pollutants (NESHAPS), apply to new as well as existing sources. Additionally, under 112(r), the accidental release provisions of the CAA, facilities are required to provide information on the ways they manage risk posed by certain substances listed by EPA and indicate what they are doing to minimize risk to the community from those chemicals.

How the CAA and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) interact can be described in the following two ways:

• The CAA hazardous air pollutants are included as CERCLA hazardous substances; and
• CAA emissions limitations provide substantive standards for CERCLA responses.

CERCLA provides federal response authority to address releases of air pollutants that threaten human health or the environment. CAA requirements may apply to CERCLA responses.

The accidental release provisions of CAA require the establishment of a list of at least 100 regulated substances and thresholds under 112. Sixteen of these substances were identified in the CAA for inclusion on the list. The rest of the list may be drawn from, but not necessarily limited to, the list of extremely hazardous substances under the Superfund Amendments and Reauthorization Act (SARA) Title III.

CAA hazardous air pollutants, identified under 112, are CERCLA hazardous substances. Other CAA air pollutants, identified under 109 and 111, are not covered by the CERCLA definition of hazardous substances but may be covered by the CERCLA definition of “pollutant or contaminant.”

CAA emissions limitations provide substantive standards for CERCLA responses in two ways. CAA emissions limitations provide triggers for Superfund action (i.e., if baseline conditions (pre-cleanup) exceed air standards, action may be warranted). Also, these limitations provide cleanup standards to attain in addressing unremediated conditions, and emission standards for certain cleanup technologies employed. CAA emission standards may be ARARs for onsite response actions at Superfund sites. The application of CAA standards as ARARs is determined on a case-by-case basis.

CERCLA responses need not comply with CAA permit requirements.

Safe Drinking Water Act (SDWA)

• SDWA was enacted to protect human health by protecting the quality of the nation’s drinking water supply.
• Surface and underground public drinking water sources are protected by the SDWA.

The Safe Drinking Water Act (SDWA) was enacted in 1974 to protect human health by protecting the quality of the nation’s drinking water supply. It protects drinking water sources by regulating facilities or systems that inject fluids into the ground and protects public drinking water consumers by regulating the quality of water distributed by public water systems. These goals are achieved by authorizing the establishment of:

• Drinking water standards,
• A permit program for the underground injection of wastes, and
• Resource planning programs.

Both surface and underground public drinking water sources are thereby protected by the SDWA.

The SDWA imposes requirements on persons who own or operate a system which has at least 15 service connections or 25 consumers and provides piped water for human consumption. The regulations which implement these requirements are entitled the National Primary Drinking Water Regulations (NPDWR). All water suppliers must periodically sample the water delivered to users and record and report their findings to the Environmental Protection Agency (EPA) or the state, whichever is appropriate.

The Underground Injection Control (UIC) program protects underground sources of drinking water from contamination by injection of waters or wastes into injection wells. A permit program limits substances that may be injected and how they may be injected.

How the SDWA and CERCLA interact

Provisions of the SDWA apply to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) site discharges to public drinking water sources. SDWA provisions such as maximum contaminant levels (MCLs) may be applicable to CERCLA cleanup of water that may be used for drinking.

Toxic Substances Control Act (TSCA)

• TSCA was enacted to keep out of the environment chemicals that pose unreasonable risk and to fill the gaps in existing environmental laws in the areas of toxic substances.
• TSCA and CERCLA commonly interact if PCBs are involved in a CERCLA response.

The Toxic Substances Control Act (TSCA), signed into law in October 1976, provides the Environmental Protection Agency (EPA) with broad authority to regulate chemicals and chemical substances whose manufacture, processing, distribution in commerce, use or disposal may present an unreasonable risk of injury to health or the environment. TSCA was enacted to keep harmful chemicals out of the environment and to fill the gaps in existing environmental laws in the areas of toxic substances.

TSCA deals with all chemical substances planned for production, produced, imported, or exported from the country. TSCA applies primarily to manufacturers, distributors, processors, and importers of chemicals. TSCA provides authorities to control the manufacture and sale of certain chemical substances. These authorities include:

• Testing of chemicals currently in commercial production or use;
• Pre-market screening and regulatory tracking of new chemical products;
• Controlling unreasonable risks once a chemical substance is determined to have an adverse effect on health or the environment. These powers include:
  • Prohibiting the manufacture or certain uses of the chemical,
  • Requiring labeling with specific markings or warnings,
  • Limiting volume of production or concentration,
  • Requiring recordkeeping about production,
  • Requiring replacement or re-purchase of products, and
  • Controlling disposal methods.

The only exceptions to these authorities are pesticides (which are regulated under the Federal Insecticide, Fungicide and Rodenticide Act); tobacco or tobacco products; source material by-products or special nuclear material (as defined by the Atomic Energy Act); and food, food additives, drugs, and cosmetics (regulated under the Food, Drug and Cosmetic Act).

How TSCA and CERCLA interact

TSCA and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) commonly interact if polychlorinated biphenyls (PCBs) are involved in a CERCLA response. PCB disposal regulations under TSCA may apply, as applicable or relevant and appropriate requirements (ARARs), at Superfund sites. TSCA regulations of other chemicals may also present possible ARARs, depending on the type of hazardous substances at a Superfund site.

Hazardous Materials Transportation Uniform Safety Act (HMTUSA)

• The requirements of the HMTUSA were designed to provide national direction and guidance to enhance hazardous materials emergency preparedness activities at the state and local levels.

Section 117 of the Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA) evolved from the emergency preparedness proposal developed by the Department of Transportation (DOT), Federal Emergency Management Agency (FEMA), the Environmental Protection Agency (EPA), Department of Labor (DOL), and Department of Energy (DOE) and presented to the Congress during the legislative process to reauthorize the Hazardous Materials Transportation Act of 1975.

The requirements of the HMTUSA were designed to allow the federal government or provide national direction and guidance to enhance hazardous materials emergency preparedness activities at the state and local levels. This is accomplished by ensuring comprehensive, integrated, and coordinated planning, training, and technical assistance programs. Section 117, “Public Sector Training and Planning,” was specifically crafted to build upon and enhance the existing framework and working relationships established within CERCLA/Superfund for the National Response Team (NRT), Regional Response Teams (RRTs), and Superfund Amendments and Reauthorization Act (SARA) Title III State Emergency Response Commission.

How HMTUS and CERCLA interact

HMTUSA builds on existing programs and relationships and, in fact, specifically requires grant money to be submitted to Local Emergency Planning Committees (LEPCs) as established under the SARA Title III. Specifically, HMTUSA provides for:

• Planning grants to develop, improve, and implement SARA Title III local emergency response plans and to determine the need for regional hazardous materials emergency response teams. States will receive these grants by agreeing to submit at least 75 percent of their planning grants money directly to LEPCs to develop, improve, and implement their emergency plans.
• Training grants for delivery of training to public sector employees in hazardous materials response. This grant could be used for hazardous material waste and emergency response and other training activities, However, in order to qualify for the training grants, states/tribes must certify they are in compliance with Sections 301 and 303 of SARA Title III.

Historical notes

• The release of toxic chemicals in West Virginia in 1985 along with methyl isocyanate gas escaping a chemical plant in Bhopal, India in 1984, led to the enactment of EPCRA.
• An aboveground storage tank leaking MCHM into a river in Charleston, West Virginia in 2014 led to the passing of the America’s Water Infrastructure Act of 2018, which amended EPCRA.

To understand the Emergency Planning and Community Right-to-Know Act (EPCRA), it may be important to know the historical tragedies that prompted the law and related regulations, as well as more modern events that continue to shape them. These incidents underscore the impact chemical accidents have on human health and the environment, as well as the importance of ongoing preparedness efforts in protecting communities from chemical accidents.

It has been several decades since the enactment of EPCRA and the most significant lesson learned in that time is that preparedness requires participation, ongoing effort and vigilance by all community members including political leaders, first responders, and emergency planners and responders.

1984 Bhopal, India

The incident that led to the creation of EPCRA occurred on December 2, 1984, in Bhopal, India. A cloud of methyl isocyanate gas escaped from a chemical plant and spread to the community near the plant. This resulted in the death of approximately 4,000 residents and injured thousands. In addition, 8,000 more died in the two weeks afterwards. Over 550,000 people experienced long-term exposure related illnesses.

1985 Institute, West Virginia

In August 1985 an incident occurred at another facility in Institute, West Virginia when a cloud of toxic chemicals used to manufacture pesticides was released. Six workers were injured, and more than a hundred residents were sent to the hospital. This incident along with the one in Bhopal, India led to the enactment of EPCRA.

2005 Texas City, Texas

On March 23, 2005, a series of explosions occurred at a refinery during the restarting of a hydrocarbon isomerization unit. Fifteen workers were killed, and 180 others were injured. Many of the victims were in or around work trailers located near an atmospheric vent stack. The explosions occurred when a distillation tower flooded with hydrocarbons and was overpressurized, causing a flammable liquid, geyser-like release from the vent stack.

2012 Richmond, California

An August 6, 2012, release of flammable vapor led to a fire at a refinery in Richmond, California. The release, ignition, and subsequent burning of the hydrocarbon process fluid resulted in a large plume of vapor, particulates, and black smoke, which traveled across the surrounding area.

In the weeks following the incident, approximately 15,000 people from the surrounding communities sought medical treatment at nearby medical facilities for ailments including breathing problems, chest pain, shortness of breath, sore throat, and headaches. Approximately 20 of these people were admitted to local hospitals as inpatients for treatment.

2013 West, Texas

Planners and responders should be aware of the risks in the community and actions they should take during a chemical incident. This was especially apparent during an incident in West, Texas, in 2013.

An explosion resulted in the death of 15 people, including 12 first responders and 3 members of the public and injured 260 residents. The detonation demolished buildings including nearby schools, a 22-unit apartment complex, and a 145-bed nursing home located between 450 feet to 1,263 feet away from the facility.

Local planners and responders, who are also Local Emergency Planning Committee (LEPC) or Tribal Emergency Planning Committee (TEPC) members, are encouraged to review the Tier II form submitted by each facility in their community, and to be aware of the potential risks of all the chemicals to prepare for and respond to any incident.

2014 Charleston, West Virginia

On January 9, 2014, a leaking aboveground storage tank released over 10,000 gallons of methylcyclohexane methanol (MCHM) and “stripped-PPH” made up of dipropylene glycol phenyl ether and propylene glycol phenyl ether (PPH), into the Elk River one mile upstream from the drinking water intake for the city of Charleston, West Virginia. Over 300,000 residents in nine counties were without water for 14 to 21 days.

This incident led to the passing of the America’s Water Infrastructure Act of 2018, which amended EPCRA to require community water systems to receive notifications of chemical releases and access to hazardous chemical inventory information. Community water systems are encouraged to join their local LEPC or TEPC to ensure they receive this information.

Where to look

• Citations to EPCRA itself may be made in two ways.

Citations to the Emergency Planning and Community Right-to-Know Act (EPCRA) itself may be made in two ways:

• By title and section, as the law was originally enacted (e.g., EPCRA 312); and
• By title, chapter, subchapter, and section of the United States Code (U.S.C.) (e.g., 42 U.S.C. 11001), which refers to the government codification.

The U.S. Code sections are broken down in a similar manner as EPCRA, beginning with 42 U.S.C. 11001, which corresponds to Superfund Amendments and Reauthorization Act (SARA) 301; 42 U.S.C. 11002 is the same as EPCRA 302, and so on. However, while the sections break down the same, the section numbers do not align.

To complicate matters, the Environmental Protection Agency (EPA) promulgated several regulations authorized by EPCRA. Here is a birds-eye view of the regulations and their corresponding EPCRA and U.S. Code(s):

Requirements

• EPCRA has five sets of requirements.

The Emergency Planning and Community Right-to-Know Act (EPCRA) has five sets of requirements:

• Emergency planning:
  • Local governments are required to prepare chemical emergency response plans and to review plans at least annually.
  • State governments are required to oversee and coordinate local planning efforts.
  • Owners or operators of facilities that maintain extremely hazardous substances (EHSs) onsite in quantities equal to or greater than corresponding threshold planning quantities (TPQs) must cooperate in emergency plan preparation and provide the required information.
• Emergency notification:
  • Owners or operators of facilities must immediately report accidental releases of EHSs and Comprehensive Environmental Response, Compensation, and Liability Act- (CERCLA)-defined hazardous substances.
  • Owners or operators of facilities must report to state and local officials any releases of these substances in quantities equal to or greater than their corresponding reportable quantities (RQs). Note: The continuous release reporting regulation offers reduced reporting options under CERCLA 103(a) and regulation 40 CFR 302.8 for facilities that release hazardous substances in a manner that is continuous, and stable in quantity and rate. This reduced reporting is also applicable to releases of EHSs under EPCRA 304.
• SDS reporting and Tier II reporting:
  • Owners or operators of facilities handling or storing any hazardous chemicals must submit:
    • Material safety data sheets (MSDSs) (or safety data sheets (SDSs)) or a list of facility non-exempted hazardous chemicals, to state and local officials and local fire departments.
    • Submit to state and local officials and local fire departments by March 1, a Tier II chemical inventory form (or state equivalent form) 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.
• Toxics Release Inventory (TRI):
  • Owners or operators of covered facilities must complete and submit a toxic chemical release inventory form (Form R or Form A) annually. The form must be submitted for each of the TRI chemicals that are manufactured, processed, or otherwise used above the applicable threshold quantities at the facility.
• Trade secrets:
  • Facilities may withhold the specific chemical identity from the reports filed under EPCRA 303, 311, 312 and 313 if the facilities submit a claim with substantiation to the Environmental Protection Agency (EPA).

Chemicals and reporting thresholds

• EPCRA chemicals and reporting thresholds can be found in a table.

This table of Emergency Planning and Community Right-to-Know Act (EPCRA) chemicals and reporting thresholds may help to keep them straight:

^{*These thresholds are only applicable for gasoline and diesel present at retail gas stations in tank(s) entirely underground and was in compliance at all times during the preceding calendar year with all applicable Underground Storage Tank (UST) requirements at 40 CFR 280 or requirements of the state UST program approved by the agency under 40 CFR 281.}

Reporting schedules

• The EPCRA table on reporting schedules can help meet deadlines.

The table of Emergency Planning and Community Right-to-Know Act (EPCRA) reporting schedules may help to meet deadlines:

Determining the quantity of EHSs present

• The facility owner or operator must add up the amounts of each EHS at the facility, then determine if a TPQ is present.
• The de minimis rule refers to the amount of an EHS present in a mixture below which the concentration is too small to be considered hazardous.

The presence of extremely hazardous substances (EHSs) in quantities at or above the threshold planning quantity (TPQ) requires certain emergency planning activities to be conducted. The EHSs and their TPQs (in pounds) are listed in 40 CFR 355, Appendices A and B.

To determine the quantity of EHS present, aggregate, or add up, the amounts of each EHS at the facility to determine if a TPQ is present. This means that, for a particular chemical, determine the total amount present at any one time at the facility by adding together the quantity of pure EHS and the quantity contained in all mixtures, regardless of location, number of containers, or method of storage. (Do not count an EHS in a mixture if the concentration of that EHS is less than or equal to one percent.)

TPQs for Solids

Solids on the EHS list have two TPQ values. The first threshold is for the chemical in a powdered (particle diameter less than 100 microns), solution (solid EHS dissolved in a liquid), or molten (liquid form of an EHS which is solid at standard temperature and pressure) form. The second value applies to all other forms of the chemical. For example, cantharidin, a solid at room temperature, has two thresholds: 100/10,000 pounds. The first value would apply if the facility had a cantharidin solution. If the cantharidin was in large pieces, however, the TPQ would be 10,000 pounds.

TPQs for EHSs present in mixtures, molten, or solution form

If an EHS is present in a mixture, the weight of the EHS present is calculated by multiplying the weight percent of EHS present by the weight of the mixture. For example, if a 200-pound mixture is 25 percent EHS, the amount of EHS present in the mixture can be calculated as follows:

• EHS (lbs.) = (weight % EHS) x (weight of mixture)
• = (25%) x (200 lb. mixture)
• = (0.25)(200 lbs.)
• EHS = 50 lbs.

If an EHS is present in molten form, the weight of the EHS present is calculated by multiplying the weight of the solid in molten form by an adjustment factor of 0.3. The adjustment factor accounts for the maximum potential volatility expected for solids in molten form. The resulting figure is then compared to the lower TPQ in question. For example, the amount of EHS present in 300 lbs. of solid in molten form can be calculated as follows:

• EHS (lbs.) = (total weight of solid EHS in molten form) x (adjustment factor)
• = (300 lbs.) x (0.3)
• EHS = 90 lbs.

If a solid EHS is in solution form, the facility must multiply amount EHS onsite by 0.2 before comparing to the lower listed TPQ.

The reducing factors of 0.3 for molten solids and 0.2 for solids in solution are not to be used for the 12 solid reactive chemicals noted by footnote “a” in Appendix A and B in 40 CFR 355. These 12 chemicals are not listed with two TPQs and higher threshold quantity of 10,000 pounds; they only have one TPQ.

De minimis rule

The de minimis rule refers to the amount of an extremely hazardous substance (EHS) present in a mixture below which the concentration is too small to be considered hazardous. For purposes of threshold planning quantity (TPQ) determinations, the de minimis value is one percent. This means that if any EHS is present in a mixture or solution at concentrations below one percent by weight, it does not need to be accounted for in a TPQ determination.

The de minimis rule can be explained by the following example:

• Mixture A contains two percent by weight of acetone cyanohydrin. Mixture B contains 20 percent by weight of acetone cyanohydrin. Mixture C contains 0.5 percent by weight of acetone cyanohydrin.
• For mixtures A and B, the concentrations by weight are above the one percent de minimis value. Therefore, the amount of acetone cyanohydrin present in mixtures A and B must be calculated by multiplying the weight percent of chemical present times the weight of the mixture.
• The facility owner/operator must then aggregate the amount of acetone cyanohydrin in mixtures A and B to determine if the TPQ was exceeded.
• Since the concentration of acetone cyanohydrin in mixture C is below the 1 percent de minimis value, no calculation needs to be made for the chemical in this mixture.

Transportation exemption

• Substances in transport or in storage incident to such transport are exempt from emergency planning notification.

Substances in transport or in storage incident to such transport are exempt from emergency planning notification. Although these chemicals need not be counted toward threshold planning quantities, Local Emergency Planning Committees (LEPCs) may request information about these chemicals for emergency planning purposes. For example, many substances at facilities such as truck terminals and railroad yards would be exempt because the substances are under active shipping papers. Similarly, substances present in pipelines are exempt from reporting.

The transportation exemption applies to the substances, however, not to the facility. Any substances that are not under active shipping papers or substances not in a pipeline (such as those in a storage tank at the end of a pipeline) must be included for threshold determinations.

Federal emergency planning requirements and state/local authority

• The owner or operator of any facility that has an EHS present at or above the TPQ must notify the SERC and LEPC that the facility is subject to the emergency planning requirements.
• If a state wishes to make the standards more stringent by lowering the thresholds, for example, it may do so by passing a state law.

Even though the Local Emergency Planning Committees (LEPC) will have a broad-based membership drawn from many parts of the community, the committee will most likely not be able to identify all potential hazards of a community by looking at a map or a list of area businesses.

Therefore, under Emergency Planning and Community Right-to-Know Act (EPCRA) 302(c), the owner or operator of any facility that has an extremely hazardous substance (EHS) present at or above the threshold planning quantity (TPQ) must notify the State Emergency Response Commission (SERC) and LEPC that the facility is subject to the emergency planning requirements. This notification requirement alerts the SERC and LEPC to the fact that the facility should be considered for state and local emergency planning purposes. If there are any changes involving the presence of EHSs in excess of TPQs at a facility, the facility’s owner or operator is required to notify the SERC and LEPC within 60 days.

Facility owners or operators covered by the emergency planning requirements may wish to use the following table to determine what information must be provided, who to provide it to, and when:

State/local authority

The requirements of EPCRA, including TPQs, are the minimum standards that must be enforced. Nothing in the statute preempts or affects any state or local law. If a state wishes to make the standards more stringent by lowering the thresholds, for example, it may do so by passing a state law.

Emergency response plan elements and transportation plans

• Emergency response plans require certain plan elements.
• The EPA suggests that LEPCs address details such as communication systems, evacuation routes, and resources when developing a plan.

Emergency response plans must include:

• Identification of facilities subject to emergency planning and notification requirements that are within the emergency planning district; identification of routes likely to be used for the transportation of extremely hazardous substances (EHSs); and identification of additional facilities (such as natural gas facilities or hospitals) contributing or subjected to additional risk due to their proximity to covered facilities;
• Methods and procedures to be followed by facility owners/operators and local emergency and medical personnel to respond to any release of EHSs;
• Designation of a community emergency coordinator and facility emergency coordinators, who will make determinations necessary to implement the plan;
• Procedures providing reliable, effective, and timely notification by the facility emergency coordinators and the community emergency coordinator to persons designated in the emergency plan, and to the public, that a release has occurred (consistent with the emergency release notification requirements of Section 304 of the Emergency Planning and Community Right-to-Know Act (EPCRA));
• Methods to determine the occurrence of a release, and the area or population likely to be affected by such release;
• A description of emergency equipment and facilities in the community subject to emergency planning and notification requirements, and identification of the persons responsible for such equipment and facilities;
• Evacuation plans, including provisions for a precautionary evacuation and alternative traffic routes;
• Training programs, including schedules for training local emergency response and medical personnel; and
• Methods and schedules for exercising the emergency plan.

Although Local Emergency Planning Committees (LEPCs) are informed of general emergency information, each LEPC cannot possibly be familiar with all aspects of the community and the facilities located in the planning area. To assist local planners, facilities subject to the emergency planning provisions must designate a facility emergency coordinator to assist the LEPC in the emergency planning process.

EPCRA 303(d)(3) requires the facility upon request to promptly provide information to the LEPC deemed necessary for developing and implementing the emergency plan. “Information” is not defined in the statute or the regulations and as such can take the form of anything necessary for the LEPC to develop and implement the emergency plan. For example, a facility plan is not required, but if requested by the LEPC, it must be prepared. The facility must notify the LEPC of any pertinent changes at the facility.

Transportation plans

Although chemical inventory information is very important for emergency response actions, transportation plans can be equally important. The Environmental Protection Agency (EPA) suggests that LEPCs address details such as communication systems, evacuation routes, and resources when developing a plan; although, evaluation of these areas is not specifically required. Only the LEPC has access to this type of information and can best evaluate it. Similarly, an LEPC should be aware of heavily traveled highways and routes that are used to transport chemicals and include them in the emergency plan.

Because of the importance of a transportation plan, a transportation representative must be a member of the LEPC.

Public notification

• The LEPC must notify the public of the availability of EPCRA information.

The LEPC has obligations to the general public in its district. The LEPC must make information and submitted reports publicly available during normal business hours. The LEPC must also notify the public of the availability of EPCRA information, such as the emergency plan, activities, and meetings, and provide opportunities for public comment. In fact, the LEPC must annually publish a notice of availability of the emergency response plan and all other information gathered under the reporting sections of EPCRA.

Getting the community actively involved in the emergency planning process offers several benefits:

• Greater community awareness of the local emergency plan;
• Development of an emergency plan that accurately addresses the community’s needs and concerns; and
• Active involvement by the community, which may serve as a catalyst for increased funding by local government entities.

Applicability determination

• Certain criteria must always be met to trigger notification to the SERC (or TERC) and LEPC (or TEPC).

Certain criteria must always be met to trigger notification to the:

• State Emergency Response Commission (SERC) or Tribal Emergency Response Commission (TERC), and
• Local Emergency Planning Committees (LEPC) or Tribal Emergency Planning Committee (TEPC).

To trigger notification to the SERC (or TERC) and LEPC (or TEPC) under EPCRA there must be a:

• Release with the potential to affect off-site persons
• Of a hazardous substance or extremely hazardous substance
• That equals or exceeds a reportable quantity
• From a facility at which a hazardous substance or extremely hazardous substance is produced, used, or stored
• Within a 24-hour period.

Other factors are also involved in making an applicability determination. These factors involve the petroleum exclusion/inclusion, the term “into the environment,” and mixtures.

Notification requirements

• As soon as practicable after a release that requires notice under EPCRA, the owner or operator of the facility is required to submit a written follow-up notice (or notices, if necessary) to the affected LEPCs (or TEPCs) and SERCs (or TERCs).

The owner or operator of a facility must comply with the emergency release notification requirements at 40 CFR 355 if both conditions are met:

• The facility owner or operator produces, uses, or stores a hazardous chemical at the facility; and
• The facility owner or operator releases a reportable quantity (RQ) of any extremely hazardous substance (EHS) or of a hazardous substance as defined by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) at the facility.

Certain releases are exempted from these requirements. Exempted releases are listed in 355.31.

In order to meet the requirements under EPCRA 304, the owner or operator of a facility must report releases of hazardous substances and EHSs to the State Emergency Response Commission (SERC) (or Tribal Emergency Response Commission (TERC)) and Local Emergency Planning Committee (LEPC) (or Tribal Emergency Planning Committee (TEPC)) immediately. This immediate notification should be oral.

The notice to the SERC (or TERC) and LEPC (or TEPC) must include:

• The chemical name or identity of any substance involved in the release;
• An indication of whether the substance is an EHS; An estimate of the quantity released into the environment;
• The time and duration of the release;
• The medium or media into which the release occurred;
• Any known or anticipated acute or chronic health risks associated with the emergency and, where appropriate, advice regarding medical attention necessary for exposed individuals;
• Proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordinator pursuant to the emergency plan); and
• The names and telephone numbers of the person or persons to be contacted for further information.

The Environmental Protection Agency (EPA) strongly recommends that facilities indicate the location of the incident in the initial notice, but this is not a regulatory requirement.

As soon as practicable after a release that requires notice under EPCRA 304, the owner or operator of the facility is required to submit a written follow-up notice (or notices, if necessary) to the affected LEPCs (or TEPCs) and SERCs (or TERCs). (Many states require the written report to be submitted within 30 days.) EPA does not specify a particular format for the written follow-up emergency notification. However, the LEPC (or TEPC) may request a specific format for this information.

Regardless of format, the follow-up report must contain all information required in the initial notice, plus any updated and additional information with respect to actions taken to respond to and contain the release, known or anticipated acute or chronic health risks associated with the release, and where appropriate, advice regarding medical attention necessary for exposed individuals. EPA also strongly recommends that the cause of the release be reported in the follow-up notice.

Special issues

• EPCRA release notification is not simple; there are several special issues related to reporting.

There are several issues relating to Emergency Planning and Community Right-to-Know Act (EPCRA) release reporting that need special attention. These topics augment previously discussed material. Knowledge of these special issues is essential to fully understanding EPCRA.

EPCRA release notification as it relates to other laws

• The EPCRA emergency release notification requirements are in addition to the release notification requirements of the CERCLA.
• Other laws may also trigger reporting requirements at the time of a release of a hazardous substance or material.

Relationship between CERCLA and EPCRA release notification requirements

The emergency release notification requirements of 40 CFR 355 are in addition to the release notification requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). If there is a release of a CERCLA hazardous substance, comply with the emergency release notification requirements of 40 CFR 355 and the release notification requirements of CERCLA 103, codified at 40 CFR 302. Use this table to determine which emergency release notification requirements apply to the release:

Other laws that trigger release reporting

As stated earlier, EPCRA is not the only statute that addresses spills and releases. Other laws may also trigger reporting requirements at the time of a release of a hazardous substance or material. These include:

• CERCLA, administered by the Environmental Protection Agency (EPA), requires facilities to notify the NRC in the event of a release into the environment that exceeds a reportable quantity (RQ). Section 103 addresses these notification requirements, penalty provisions for failure to provide proper notification, and exemptions from reporting requirements.
• The Hazardous Materials Transportation Act (HMTA), administered by the Department of Transportation (DOT), requires reporting of hazardous materials releases or accidents.
• The Toxic Substances Control Act (TSCA), administered by EPA, requires reporting of releases of polychlorinated biphenyls (PCBs).
• The Clean Water Act (CWA), administered by EPA, requires reporting of hazardous substance and oil releases into navigable waters.

Mixtures

• To determine the quantity of an EHS or a non-EHS hazardous chemical component present in a mixture, multiply the concentration of the hazardous chemical component by the weight of the mixture.
• In order to reduce the regulatory burden on facilities, EPA promulgated a de minimis exemption for SDS (or MSDS) reporting.

A mixture is a combination of two or more different substances, each retaining its own chemical identity. Facilities may have mixtures containing extremely hazardous substances (EHSs) or hazardous chemicals. To determine the quantity of an EHS or a non-EHS hazardous chemical component present in a mixture, multiply the concentration of the hazardous chemical component (in weight percent) by the weight of the mixture (in pounds).

However, the owner or operator of a facility can choose to report all the components of a mixture separately or report the mixture as a whole (e.g., if the composition of a mixture is unknown), unless it is not possible to do so. The catch is whichever option the facility uses, the reporting of mixtures must be consistent for both EPCRA 311 and 312 reporting, where practicable. If a facility reports on mixtures as a whole in EPCRA 311, it must do the same in EPCRA 312 (where practicable). (EPCRA 311 is about SDS/MSDS reporting, and EPCRA 312 is about annual Tier I/Tier II chemical inventory reporting.)

Environmental Protection Agency (EPA) regulation 40 CFR 370.14 offers a handy table to explain the mixture requirements:

• 1 percent for noncarcinogens — If a hazardous chemical exists in concentrations of 1 percent or less by weight, it does not need to be counted in determining threshold applicability.
• 0.1 percent for carcinogens — If the chemical is a carcinogen, concentrations of 0.1 percent by weight or less are considered de minimis, and therefore do not need to be counted towards thresholds.

Exemptions

• There are certain substances that do not require an SDS/MSDS and are exempt.
• Exemptions apply to specific chemicals within the scope of the exemption only, not to all hazardous chemicals at a particular facility

The exemptions from safety data sheet (or material safety data sheet) reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) provide facility owners/operators relief from reporting in a range of situations that are covered under other regulatory programs or are outside the scope of the statute’s purpose. There are occasions when a facility meeting EPCRA 311 applicability may not have to report because either the chemical or the facility is exempt.

“Chemical exemptions” apply only to those specific chemicals that meet the exemptions under the Occupational Safety and Health Administration’s (OSHA’s) Hazard Communication Standard (HCS) and EPCRA 311, not to the facility itself. “Facility exemptions” apply to all hazardous chemicals at facilities that are exempt from reporting.

There are some similarities between the HCS and EPCRA exemptions. The exemptions may appear duplicative, however, due to the different scopes and purposes of the two provisions, the interpretation and application of each exemption varies.

Reporting requirements

• A facility must submit an SDS/MSDS for each hazardous chemical equaling or exceeding a threshold. Alternatively, the facility may submit a list of these hazardous chemicals.

To meet the requirements of Emergency Planning and Community Right-to-Know Act (EPCRA) 311, a facility must submit a copy of each safety data sheet (SDS) (or material safety data sheet (MSDS) for each hazardous chemical equaling or exceeding a threshold to:

• Local Emergency Planning Committee (LEPC) or Tribal Emergency Planning Committee (TERC);
• State Emergency Response Commission (SERC) or Tribal Emergency Response Commission (TERC); and
• Fire department with jurisdiction over your facility.

Alternatively, instead of copies of SDSs/MSDSs, the facility can submit a list of these hazardous chemicals grouped by hazard category. This list must include the hazardous chemical name or common name and any hazardous component of each hazardous chemical, except when reporting by mixture. The SDS/MSDS or list of chemicals is a one-time submission, and there is no required form to fill out.

If, after initial reporting, a facility owner/operator finds that it has a hazardous chemical that is newly covered or there has been significant new information on an already reported chemical, the information reported under EPCRA 311 must be updated. If the facility owner/operator initially submitted:

• By SDS/MSDS (instead of a list), it can submit a copy of the new or revised SDS.
• By a list of chemicals (instead of SDSs/MSDSs), it should file a revised list. The new list should include any newly covered hazardous chemical being reported or any changes to the hazard category of a given chemical.

A facility must supply this supplemental information within three months after discovery of significant new information (40 CFR 370.21(c)).

Mixtures

• To determine the quantity of an EHS or a non-EHS hazardous chemical component present in a mixture, multiply the concentration of the hazardous chemical component by the weight of the mixture.
• In order to reduce the regulatory burden on facilities, EPA promulgated a de minimis exemption for Tier I (or Tier II) reporting.

A mixture is a combination of two or more different substances, each retaining its own chemical identity. Facilities may have mixtures containing extremely hazardous substances (EHSs) or hazardous chemicals. To determine the quantity of an EHS or a non-EHS hazardous chemical component present in a mixture, multiply the concentration of the hazardous chemical component (in weight percent) by the weight of the mixture (in pounds).

However, the owner or operator of a facility can choose to report all the components of a mixture separately or report the mixture as a whole (e.g., if the composition of a mixture is unknown), unless it is not possible to do so. The catch is whichever option the facility uses, the reporting of mixtures must be consistent for reporting under both EPCRA 311 and EPCRA 312, where practicable. If a facility reports on mixtures as a whole in EPCRA 311, it must do the same in EPCRA 312, where practicable. (EPCRA 311 is about SDS/MSDS reporting, and EPCRA 312 is about Tier I (or Tier II) reporting.)

EPA regulation 40 CFR 370.14 offers a handy table to explain the mixture requirements:

• 1 percent for noncarcinogens — If a hazardous chemical exists in concentrations of 1 percent or less by weight, it does not need to be counted in determining threshold applicability.
• 0.1 percent for carcinogens — If the chemical is a carcinogen, concentrations of 0.1 percent by weight or less are considered de minimis, and therefore do not need to be counted towards thresholds.

Exemptions

• Certain substances are exempt from Tier II reporting.

The exemptions from Section 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA) reporting provide facility owners/operators relief from reporting in a range of situations that are covered under other regulatory programs or are outside the scope of the statute’s purpose. There are occasions when a facility meeting EPCRA 312 applicability may not have to report because either the chemical or the facility is exempt.

Chemical exemptions apply only to those specific chemicals that meet the exemptions under the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard (HCS) or EPCRA 312, not to the facility itself. Facility exemptions apply to all hazardous chemicals at facilities that are exempt from reporting.

There are some similarities between the HCS and EPCRA 312 exemptions. The exemptions under each may appear duplicative, however, due to the different scopes and purposes of the two provisions, the interpretation and application of each exemption varies.

Reporting requirements

• Tier II reporting is on or before the first of March every year.
• To prepare the reporting form, the owner or operator of the facility will need to gather the necessary data.

Basic reporting requirements

If required to comply with the hazardous chemical inventory reporting requirements, then:

• On or before the first of March every year the facility owner or operator must submit inventory information regarding any hazardous chemical present at the facility at any time during the previous calendar year in an amount equal to or in excess of its threshold level specified at 40 CFR 370.10.
• The facility owner or operator must submit Tier II information within 30 days of the receipt of a request from the State Emergency Response Commission (SERC), Tribal Emergency Response Commission (TERC), Local Emergency Planning Committee (LEPC), Tribal Emergency Planning Committee (TEPC), or the fire department having jurisdiction over your facility.

The completed form must be sent to each of the following organizations:

• Your SERC or TERC;
• Your LEPC or TERC; and
• The fire department with jurisdiction over the facility.

While the regulations at 40 CFR 370 Subpart C offer a minimal Tier I reporting form option, currently, all states require either a Tier II or state-equivalent form (hard copy or electronic) to be in compliance with the inventory reporting requirements. Therefore, the Tier I reporting option is not discussed here.

The Environmental Protection Agency (EPA) publishes the Tier II Inventory Form that provides a uniform format for reporting the Tier II information. EPA’s Tier II form is available on its website. A Tier II form, once filled in, contains specific information on a hazardous chemical present at the facility. Additional chemical information pages must be used as needed—one page for each hazardous chemical.

The Tier II form requires facilities to report specific information on the amounts and locations of hazardous chemicals. Separate fields are provided for reporting both pure chemicals and mixtures. For each entry, the facility owner or operator will check the box indicating if the chemical information is identical to the information submitted last year. Chemical descriptions, hazards, amounts, and locations must be provided even if the information is identical to that submitted last year.

States may impose fees for processing Tier II forms or even have their own forms that facilities must use to fulfill Emergency Planning and Community Right-to-Know Act (EPCRA) 312 requirements. Facility owners and operators should contact the SERC to determine a state’s requirements for inventory reporting formats, procedures, and state fees (if any) and to obtain inventory forms.

Gathering information

To prepare the reporting form, the owner or operator of the facility will need to gather the necessary data. The source of that data may be found anywhere, but the following entities may be able to help:

• The facility’s purchasing department may have information on chemical storage, including the maximum and average amounts present at the facility.
• Chemical suppliers should have sent the facility a safety data sheet (SDS) (or material safety data sheets (MSDS)) for the hazardous chemicals present at the facility.
• Forklift battery suppliers or vendors may be able to look up a battery model number and give the facility owner or operator the battery acid weight for each battery.
• The facility’s human resources department will have the number of employees, which will help in estimating the maximum number of occupants present at any one time.

Applicability determination

• TRI has three applicability criteria.
• When making the full-time employee determination, the facility must consider all paid vacation and sick leave used as hours worked by each employee.

Emergency Planning and Community Right-to-Know Act (EPCRA) 313 and 40 CFR 372 require that reports be filed by owners and operators of facilities that meet all of the following criteria:

• The facility has 10 or more full-time employee equivalents (i.e., a total of 20,000 hours or greater; see 40 CFR 372.3);
• The facility is included in a North American Industrial Classification System (NAICS) code listed in 40 CFR 372.23; and
• The facility manufactures (including imports), processes, or otherwise uses any EPCRA 313 chemical in quantities greater than the established threshold during a calendar year. (Reporting thresholds are listed in 40 CFR 372.25, .27, .28, and .29.)

Important notes:

• In 1993, Executive Order 12856 extended these reporting requirements to federal facilities, regardless of their Standard Industrial Classification (SIC) or NAICS code. Subsequent Executive Orders have not changed this requirement.
• A facility may be covered by the supplier notification requirements at 40 CFR 372.45 even if it is not covered by the TRI reporting requirements. For example, even if the facility has fewer than 10 full-time employees or does not manufacture or process any of the EPCRA 313 chemicals in sufficient quantities to trigger the release and other waste management reporting requirements, the facility may still be required to provide supplier notification to certain customers.

Exemptions

• Facilities will want to determine if they have exemptions from TRI reporting.
• The de minimis concentration exemption does not apply to chemicals of special concern, except for purposes of the supplier notification at 372.45.
• Chemicals contained in articles that are processed or otherwise used at a covered facility are exempt from threshold determinations and release and other waste management calculations.

Facilities will want to determine if they have exemptions from Toxics Release Inventory (TRI) reporting, under 40 CFR 372.28. While the facility will want to review the regulation for specific details, these exemptions are summarized below:

• De minimis concentrations of a toxic chemical in a mixture
• Articles
• The following uses (only applicable to the quantity used for the purpose described):
  • Use as a structural component of the facility.
  • Use of products for routine janitorial or facility grounds maintenance. Examples include use of janitorial cleaning supplies, fertilizers, and pesticides similar in type or concentration to consumer products.
  • Personal use by employees or other persons at the facility of foods, drugs, cosmetics, or other personal items containing toxic chemicals, including supplies of such products within the facility such as in a facility operated cafeteria, store, or infirmary.
  • Use of products containing toxic chemicals for the purpose of maintaining motor vehicles operated by the facility.
  • Use of toxic chemicals present in process water and non-contact cooling water as drawn from the environment or from municipal sources, or toxic chemicals present in air used either as compressed air or as part of combustion.
• Certain activities in laboratories under the supervision of a technically qualified individual
• Certain owners of leased property such as industrial parks
• Certain operators of establishments on leased property such as industrial parks
• Coal extraction activities
• Metal mining overburden

De minimis concentration exemption

The de minimis concentration exemption does not apply to toxic chemicals listed in 372.28, also known as chemicals of special concern, except for purposes of the supplier notification at 372.45. The de minimis concentration exemption also does not apply to wastes, as they are not considered “mixtures.”

With that said, a person is not required to consider the quantity of the toxic chemical present in a mixture when determining whether an applicable threshold has been met under 372.25 or determining the amount of release to be reported under 372.30 if a toxic chemical is in a concentration in the mixture which is:

• Below 0.1 percent of the mixture in the case of a toxic chemical which is a carcinogen, or
• Below one percent of the mixture in the case of any other TRI chemical.

To assist facilities, the Environmental Protection Agency (EPA) indicates the de minimis percent limit for individually listed toxic chemicals in Table II of the publication Toxic Chemical Release Inventory Reporting Forms and Instructions.

The de minimis concentration exemption applies whether the person received the mixture from another person or the person produced the mixture, either by mixing the chemicals involved or by causing a chemical reaction which resulted in the creation of the toxic chemical in the mixture.

However, this exemption applies only to the quantity of the toxic chemical present in the mixture. If the toxic chemical is also manufactured (including imported), processed, or otherwise used at the covered facility other than as part of the mixture or in a mixture at higher concentrations, in excess of an applicable threshold quantity set forth in 372.25, the person is required to report under 372.30.

Editor’s note: On December 5, 2022, EPA proposed to add covered per and polyfluoroalkyl substances (PFAS) to the list of chemicals of special concern at 372.28, and if EPA finalizes this change, it means the de minimis concentration exemption will not be available for the PFAS listed at 372.28. In addition, EPA is proposing to remove the availability of the de minimis exemption for purposes of the Supplier Notification Requirements for all chemicals on the list of chemicals of special concern.

Article exemption

Emergency Planning and Community Right-to-Know Act (EPCRA) 313 chemicals contained in articles that are processed or otherwise used at a covered facility are exempt from threshold determinations and release and other waste management calculations. This exemption does not apply to the manufacture of the article.

For an EPCRA 313 chemical in an item to be exempt as part of the article, the item must meet all the following criteria in the EPCRA 313 article definition; that is, it must be a manufactured item which:

• Is formed to a specific shape or design during manufacture,
• Has end use functions dependent in whole or in part upon its shape or design during end use, and
• Does not release a toxic chemical under normal conditions of processing or use of the item at the facility.

If, in the course of processing or use, an item retains its initial thickness or diameter, in whole or in part, it meets the first part (i.e., it must be a manufactured item which is formed to a specific shape or design during manufacture) of the article definition. On the other hand, metal wire may be bent and sheet metal may be cut, punched, stamped, or pressed without losing their article status as long as the diameter of the wire or tubing or the thickness of the sheet is not totally changed.

What constitutes a release of an EPCRA 313 chemical is important since processing or otherwise use of articles that results in a release to the environment (or more than 0.5 pounds) negates the article status and precludes eligibility for the exemption. Cutting, grinding, melting, or other processing of manufactured items could result in a release of an EPCRA 313 chemical during normal conditions of processing or otherwise use and therefore negate the exemption as articles.

Reporting

• Covered facilities must send TRI reports to the EPA and their designated state agency by the first of July each year for activities that took place during the preceding calendar year.

Covered facilities must send Toxics Release Inventory (TRI) reports to the Environmental Protection Agency (EPA) and their designated state agency by the first of July each year for activities that took place during the preceding calendar year. These reports represent EPA’s TRI, a national compilation of toxic chemical release and waste management information, which is made available to the public.

Basic reporting requirements

For each toxic chemical known by the owner or operator to be manufactured (including imported), processed, or otherwise used in excess of an applicable threshold quantity in 372.25, .27, .28, or .29 at its covered facility for a calendar year, the owner or operator must submit to EPA and to the designated state agency in the state which the facility is located the following completed forms in accordance with the instructions in 40 CFR 372 Subpart E:

• EPA Form R (EPA Form 9350-1),
• EPA Form R Schedule 1 (EPA Form 9350-3) for the dioxin and dioxin-like compounds category, and
• EPA Form A (EPA Form 9350-2).

If the covered facility is located in Indian country, the facility shall submit (to the extent applicable) a completed EPA Form R, Form R Schedule 1, and Form A as described above to EPA and to the official designated by the tribal chairperson or equivalent elected official of the relevant Indian tribe, instead of to the state.

Each report under 40 CFR 372 for activities involving a toxic chemical that occurred during a calendar year at a covered facility must be submitted on or before the first of July of the next year. If the reporting deadline falls on a Saturday or Sunday, EPA will accept forms submitted on the following Monday (i.e., the next business day).

Supplier notification

• EPA requires some suppliers of mixtures or trade name products containing one or more of the listed toxic chemicals under EPCRA to notify their customers.
• A facility may be covered by the supplier notification requirements even if it is not covered by the TRI reporting requirements.

Because manufacturers that are required to submit annual Toxics Release Inventory (TRI) reports must know the toxic chemical composition of the products they use to be able to calculate releases accurately, the Environmental Protection Agency (EPA) requires some suppliers of mixtures or trade name products containing one or more of the listed toxic chemicals under Emergency Planning and Community Right-to-Know Act (EPCRA) 313 or 372.65 to notify their customers. This is called the supplier notification, as specified at 372.45. In addition to the supplier notification, several records must be kept by the supplier, per 372.10.

A facility is covered by the supplier notification requirements if it owns or operates a facility which meets all the criteria listed below:

• The facility is in a North American Industry Classification System (NAICS) code that corresponds to Standard Industrial Classification (SIC) codes 20-39;
• The facility manufactures (including imports) or processes an EPCRA 313 chemical; and
• The facility sells or otherwise distributes a mixture or other trade name product containing the EPCRA 313 chemical to either:
  • A facility in a covered NAICS code, or
  • A person that then may sell the same mixture or other trade name product to a firm in a covered NAICS code.

Note: A facility may be covered by the supplier notification requirements even if it is not covered by the TRI reporting requirements. For example, even if the facility has fewer than 10 full-time employees or does not manufacture or process any of the EPCRA 313 chemicals in sufficient quantities to trigger the release and other waste management reporting requirements, the facility may still be required to provide supplier notification to certain customers.

Under the supplier notification requirements, the supplier must determine if it owns or operates a facility that meets the above three criteria to be covered by the supplier notification requirement. If covered by the supplier notification requirement, the supplier must

• Check to see if the mixture or trade name product is exempted at 372.45(d).
• Consider the chemical name or the specific concentration of the EPCRA 313 chemical in a mixture or other trade name product to be a trade secret, if 372.45(e) and (f) are met and the supplier has documentation that provides the basis for the claim.
• Ensure the supplier notification includes the required information for the mixture or trade name product, if the mixture or trade name product is not exempted.
• Provide the supplier notification in writing. If required to prepare and distribute a safety data sheet (SDS) for the mixture under Occupational Safety and Health Administration (OSHA) 29 CFR 1910.1200, the supplier notification must be attached to the SDS or the SDS must be modified to include the required information.
• Notify each customer receiving a mixture or other trade name product containing an EPCRA 313 chemical with the first shipment of each calendar year. Once customers have been provided with an SDS containing the 313 information, optionally refer to the SDS by a written letter in subsequent years (as long as the SDS is current).
• Send a new or revised notification within 30 days of a change in the product or the discovery of misidentified EPCRA 313 chemical(s) in the mixture or incorrect percentages by weight.
• Watch the following for any newly added chemicals, and if a chemical is added, notify customers with the first shipment made during the next calendar year following EPA’s final decision to add the chemical to the list:
  • 42 U.S. Code 11023;
  • 15 U.S. Code 8921 subsections (b)(1), (c)(1), and (d)(3);
  • 40 CFR 372.65; and
  • https://www.epa.gov/toxics-release-inventory-tri-program/tri-listed-chemicals
• Retain the records specified at 372.10(b) for a period of three years from the date of the submission of a supplier notification.

If the facility receives supplier notifications from other suppliers about EPCRA 313 chemicals in mixtures or other trade name products, the facility must forward the notifications with the EPCRA 313 chemicals the facility sends to other covered users.

Recordkeeping

• Facilities must keep a copy of each TRI report filed for at least three years from the date of submission.
• EPA may conduct data quality reviews of Form R or Form A Certification Statement submissions.

Sound recordkeeping practices are essential for accurate and efficient Toxics Release Inventory (TRI) reporting. It is in the facility’s interest, as well as the Environmental Protection Agency’s (EPA’s), to maintain records properly. Records are not just recommended, they are required under 40 CFR 372.10.

Facilities must keep a copy of each report filed for at least three years from the date of submission. Because the Emergency Planning and Community Right-to-Know Act (EPCRA) has a five-year statute of limitations, it is best practice to keep these records for five years, instead of the minimum three years. Regardless how long these records are kept, they will be of use when completing future reports.

Facilities must maintain those documents, calculations, worksheets, and other forms upon which they relied to gather information for prior reports. In the event of a problem with data elements on a facility’s Form R or Form A Certification Statement, EPA may request documentation from the facility that supports the information reported.

EPA may conduct data quality reviews of Form R or Form A Certification Statement submissions. An essential component of this process involves reviewing a facility’s records for accuracy and completeness. EPA recommends that facilities keep a record for those EPCRA 313 chemicals for which they did not file EPCRA 313 reports.

EPA also recommends keeping records of all documentation containing Central Data Exchange (CDX) account information for the preparer(s) and certifying official(s) that use TRI-MEweb to prepare and certify the reporting facility’s TRI Form R and/or Form A Certification Statement. These CDX documents include the electronic signature agreement (ESA) and the facility’s unique alphanumeric access key.

Records to maintain include:

• Previous years’ EPCRA 313 reports;
• EPCRA 313 Reporting Threshold Worksheets;
• Engineering calculations and other notes;
• Purchase records from suppliers;
• Inventory data;
• EPA National Pollutant Discharge Elimination System (NPDES) permits and monitoring reports;
• EPCRA 312 Tier II Reports;
• Monitoring records;
• Flowmeter data;
• Resource Conservation and Recovery Act (RCRA) Hazardous Waste Generator’s Report;
• Pretreatment reports filed by the facility with the local government;
• Invoices from waste management companies;
• Manufacturer’s estimates of treatment efficiencies;
• RCRA manifests;
• Process diagrams that indicate emissions and other releases;
• Records for those EPCRA 313 chemicals for which they did not file EPCRA 313 reports; and
• CDX account information including unique access key to pre-load facility account into TRI-MEweb and copies of the ESA(s) submitted to EPA for approval.

Note that each owner or operator who determines that they are eligible, and wishes to apply the alternate threshold to a particular chemical, must retain records substantiating this determination for a period of three years from the date of the submission of the Form A. These records must include sufficient documentation to support calculations as well as the calculations made by the facility that confirm their eligibility for each chemical for which the alternate threshold was applied.

Definitions

• Various terms are critical to the understanding of the basics of the trade secrecy program.

Be familiar with the following terms associated with the trade secrecy program.

Confidential business information (CBI)

The concepts of trade secrecy, confidentiality, and other related legal concepts involve a business’ right to preserve the confidentiality of business information and to limit its use or disclosure by others in order that the business may obtain or retain the business advantages it derives from the information. The definition is meant to encompass any concept that authorizes a federal agency to withhold business information as defined by federal law, as well as any concept which requires the Environmental Protection Agency (EPA) to withhold information from the public for the benefit of a business.

Medical emergency

A medical emergency is any unforeseen condition that a health professional would judge to require urgent and unscheduled medical attention. Such a condition is one that results in sudden or serious symptom(s) constituting a threat to a person’s physical or psychological well-being, and that requires immediate medical attention to prevent possible deterioration, disability, or death.

Sanitized

A sanitized version of the trade secret form is a form that omits or withholds information claimed as confidential.

Specific chemical identity

The specific chemical identity is the chemical name, Chemical Abstracts Service (CAS) registry number, or any other precise chemical designation of a substance. When the trade name is reported in lieu of the specific chemical identity, the trade name will be treated as the specific chemical identity.

Substantiation

A claimant provides substantiation to EPA with a trade secrecy claim. It includes written answers to the specific questions set forth in 40 CFR 350.7 to support the claim that the chemical identity is a trade secret.

Trade secret

A trade secret is any confidential formula, pattern, process, device, information, or compilation of information that is used in a submitter’s business, and that gives the submitter an opportunity to obtain an advantage over competitors who do not know or use it. The definition of trade secret for the purposes of the Emergency Planning and Community Right-to-Know Act (EPCRA) mirrors that found in tort law, as well as the regulations developed by the Occupational Safety and Health Administration (OSHA) to implement its Hazard Communication Standard at 29 CFR 1910.1200.

Reporting requirements

• An owner or operator can claim a trade secret for five different reporting requirements under EPCRA.
• Along with substantiations, all five reporting sections require submittal of a sanitized form, list, MSDS or SDS, or notification, as appropriate.

Facilities encounter the possibility of divulging sensitive or confidential information when filing reports under the Emergency Planning and Community Right-to-Know Act (EPCRA). The trade secret provisions allow facilities to file the required forms without revealing secret information. A facility owner or operator can claim a trade secret for five different reporting requirements under EPCRA:

• Notification to a Local Emergency Planning Committee (LEPC) of any changes at a facility that would affect emergency plans under EPCRA 303(d)(2);
• Answers to questions posed by an LEPC under EPCRA 303(d)(3);
• Material safety data sheets (MSDSs), safety data sheets (SDSs), or chemical lists submitted under EPCRA 311;
• Tier II emergency and hazardous chemical inventory forms submitted under EPCRA 312; and
• The toxics release inventory forms submitted under EPCRA 313, including data submitted under Section 6607 of the Pollution Prevention Act

The basic reporting requirements for making a trade secrecy claim are similar among the different reporting sections. To claim a trade secret for each of these five sections, an owner or operator must file both a sanitized and unsanitized substantiation. The Environmental Protection Agency (EPA) created the trade secret substantiation form (Form 9510-1) along with instructions (publication 550-B-14-001) for this purpose. Submitter-devised forms will not be accepted.

Along with substantiations, all five reporting sections require submittal of a sanitized form, list, MSDS or SDS, or notification, as appropriate. The requirements for trade secrecy claims differ when filing unsanitized lists and forms. A facility owner or operator must file an unsanitized list only when claiming a trade secret under EPCRA 311, and an unsanitized form only when claiming a trade secret under EPCRA 312 or 313. For all EPCRA 303(c) and (d) and EPCRA 311 MSDS/SDS submittals, a claimant must only file a sanitized notification (40 CFR 350.5). The table outlines the requirements for submitting a trade secrecy claim for all reporting sections of EPCRA:

Trade secret criteria

• In order to claim a specific chemical identity as a trade secret, the submitter must prove to EPA that the trade secret claim meets four criteria set forth in the statute.

The Emergency Planning and Community Right-to-Know Act (EPCRA) does not give facilities blanket authority to withhold any information they consider sensitive or confidential. The purpose of the Act is to provide information to the public; thus the statute limits the types of information that may be withheld, as well as the circumstances in which a claim of trade secrecy can be made.

In order to claim a specific chemical identity as a trade secret, the submitter must prove to the Environmental Protection Agency (EPA) that the trade secret claim meets the following four criteria set forth in the statute:

• The submitter has not disclosed the information to any other person (other than a member of a Local Emergency Planning Committee (LEPC), an officer or employee of the United States or a state or local government, an employee of the submitter, or a person who is bound by a confidentiality agreement) and has taken reasonable measures to protect the confidentiality of such information and intends to continue to take such measures;
• The information is not required to be disclosed or otherwise made available to the public under any other federal or state law;
• Disclosure of the information is likely to cause substantial harm to the competitive position of the submitter; and
• The chemical identity is not readily discoverable through reverse engineering.

If a facility claims a trade secret for information that does not constitute a valid claim, EPA may consider the claim to be frivolous and could enforce penalties as specified in EPCRA 325(d).

Use of trade name products

• If users know the chemical identities of substances they use and wish to file a trade secrecy claim, they must make the claim in terms of the chemical names of the substances.

The use of trade name products and mixtures raises some special issues. If a facility uses a trade name product whose chemical identity is a trade secret, but whose use at the facility is not a trade secret, the Environmental Protection Agency (EPA) does not require a trade secrecy claim to be filed by the user because the manufacturer of the product would already have filed the claim.

However, if a facility considers the use of a trade name product a trade secret, the facility would have to file a separate claim with EPA despite the claim filed by the manufacturer. The trade name in this case would function as the chemical identity appearing on those parts of the Emergency Planning and Community Right-to-Know Act (EPCRA) submittal sent to EPA that the claimant can supply without knowing the specific chemical identity.

If users know the chemical identities of substances they use and wish to file a trade secrecy claim, they must make the claim in terms of the chemical names of the substances. For example, a claimant who uses a trade name product and knows the identity of the specific chemicals contained in that product must use the specific chemical name when filing a trade secrecy claim. The claimant must always report the best information available.

Submission methods and instructions

• Details on the proper procedures to submit a trade secret package are described in EPA publication 550-B-14-001.
• If a facility claims trade secrecy, a copy of the sanitized EPCRA submittal and sanitized substantiation submission must be sent to the appropriate federal, state, and local authorities.

Submissions to EPA

Facilities that wish to claim trade secrets for chemicals reported under the Emergency Planning and Community Right-to-Know Act (EPCRA) are required to submit a substantiation to justify the claim of trade secrecy as specified in the regulations at 40 CFR 350. At the time an EPCRA report is submitted, the submitter is required to provide responses to the six questions on the substantiation form, as well as certify the assertions made in the claim.

Details on the proper procedures to submit a trade secret package are described in Environmental Protection Agency (EPA) publication 550-B-14-001, Instructions for Completing the EPCRA Trade Secret Substantiation Form. The trade secret substantiation form is form 9510-1.

Submissions to state/local authorities

If a facility claims trade secrecy, a copy of the sanitized EPCRA submittal and sanitized substantiation submission must be sent to the appropriate state and local authorities as required under EPCRA 322(a). Facilities that are located on what EPA calls “Indian lands” or “Indian country” should send their submissions to the appropriate Indian tribe. If an EPCRA reporting form or substantiation containing any trade secret information is sent to the state, local, or tribal authorities, it is considered public disclosure of the information, making the claim invalid.

Petitions for review of trade secrecy claims

• There is a specific format for submitting a petition requesting disclosure of a chemical identity claimed as a trade secret.
• Upon receiving the petition for disclosure, EPA has 30 days to determine sufficiency.

To balance the right to protect trade secrets and not disclose chemical identities, the Emergency Planning and Community Right-to-Know Act (EPCRA) also creates a public petition process to request disclosure of a chemical identity claimed as a trade secret (EPCRA 322(d)). This petition process provides for review of the validity of the claim only. If requesters want disclosure of items claimed as confidential in the substantiation, rather than the EPCRA reporting document, the requests must be made pursuant to the Environmental Protection Agency’s (EPA’s) Freedom of Information Act regulations under 40 CFR 2.

There is a specific format for submitting a petition requesting disclosure outlined in 40 CFR 350.15. The petition must include the petitioner’s name, address, telephone number, and the name and address of the company claiming the chemical identity as a trade secret. The petitioner may be an individual, corporation, or other entity. The petition must include the sanitized copy of the EPCRA submission in which the chemical is claimed as a trade secret. On the form, the petitioner must clearly indicate which chemical identity is requested for disclosure to prevent any confusion about what disclosure the petitioner is requesting.

Once the petition is filed, EPA reviews the claim and must reach a decision about trade secrecy within nine months. The agency must make a determination of sufficiency, which involves deciding whether the substantiation is true and is sufficient to support the claim of trade secrecy. Depending on the degree of sufficiency, EPA will follow different procedures to determine the validity of the claim. Upon receiving the petition for disclosure, EPA has 30 days to determine sufficiency.

If the claim meets EPA’s criteria for sufficiency, the agency will notify the submitter that the individual has 30 days to submit supplemental information to support the truth of the assertions in the substantiation. If EPA does not receive any information, it will make a determination based on the information previously submitted. If EPA concludes that a substantiation does not contain answers sufficient to support the four requirements of EPCRA 322(b), then EPA will find that the trade secret claim is insufficient.

The submitter may appeal the decision to EPA’s Office of General Counsel or amend its original substantiation if the agency determines “good cause.” Good cause exceptions include:

• The submitter was not aware of the facts underlying the additional information at the time the substantiation was submitted, and could not reasonably have known the facts at the time;
• EPA regulations and other EPA guidance did not call for such information at the time the substantiation was submitted; or
• The submitter made a good faith effort to submit a complete substantiation but failed due to an inadvertent omission or clerical error.

If the claim is determined to be sufficient, EPA must decide whether the claim is entitled to trade secrecy status. If the agency determines that the facts support trade secrecy, the submitter will be notified of this decision. If EPA decides the facts do not support the claim of trade secrecy, the submitter will be notified that EPA intends to release the specific chemical identity.

Confidential business information

• To assert a confidentiality claim the submitter must clearly mark the information it considers a trade secret or confidential on the unsanitized version of the substantiation form.

The Federal Trade Secrets Act requires the federal government to protect trade secrets and confidential information unless another federal statute requires disclosure (18 United States Code (U.S.C.) 1905). Submitters may claim any information included on the substantiation form as confidential.

To assert a confidentiality claim the submitter must clearly mark the information it considers a trade secret or confidential on the unsanitized version of the substantiation form. The submitter must then delete the trade secret and confidential information on the sanitized version of the substantiation form.

The claims of trade secrecy and confidentiality for information submitted on the substantiation are not subject to the petition process, because this process applies only to claims of trade secrecy for the chemical identity. Requests for disclosure of trade secret or confidential material on the substantiation form must be submitted pursuant to Freedom of Information Act regulations.

Trade secret release or disclosure

• States have specific privileges to trade secret and confidential information.
• When a health professional is seeking information that has been granted trade secret status, the professional must justify the request in a statement of need.
• A confidentiality agreement must state that the health professionals will not use the trade secret chemical identity for any purpose other than what is outlined in the statement of need.

Release of trade secret information to states

States have specific privileges to trade secret and confidential information. Upon request, the Environmental Protection Agency (EPA) must provide to the state governor any information obtained, specific chemical identities and substantiations for trade secret claims, and the findings that prove the assertions made in the substantiations are sufficient (see Emergency Planning and Community Right-to-Know Act (EPCRA) 322(g)).

State governors are prevented from disclosing trade secret information to the public but may provide the information to State Emergency Response Commissions (SERCs) and Local Emergency Planning Committees (LEPCs). States are required to take the same precautions as EPA to safeguard trade secret information.

Trade secret disclosure to health professionals

Just as the trade secrecy provisions protect the business interests of industry, the provisions for disclosure to health professionals protect citizens from exposure to unknown hazardous chemicals (EPCRA 323). These provisions allow for the disclosure of trade secret-protected chemical identities to health professionals for diagnosis or treatment in both nonemergency and emergency situations, and for conducting preventive research studies and providing medical treatment by a health professional who is a local government employee. The health professional must sign a statement of need and a confidentiality agreement prior to disclosure. In an emergency situation, however, documentation may be provided after disclosure.

Statement of need

When a health professional is seeking information that has been granted trade secret status, the professional must justify the request in a statement of need. The following reasons for seeking a chemical’s identity are outlined in the statute as acceptable:

• To assess exposure of persons living in a local community to the hazards of the chemical concerned;
• To conduct or assess sampling to determine exposure levels of various population groups;
• To conduct periodic medical surveillance of exposed population groups;
• To provide medical treatment to exposed individuals or population groups;
• To conduct studies to determine the health effects of exposure; and/or
• To conduct studies to aid in the identification of a chemical that may reasonably be anticipated to cause an observed health effect.

Confidentiality agreement

The confidentiality agreement must state that the health professionals will not use the trade secret chemical identity for any purpose other than the health needs outlined in the statement of need. The written confidentiality agreement should include:

• A description of the procedure to be used to maintain the confidentiality of the disclosed information;
• A statement that the health professional will not use the information for any purpose other than what is in the statement of need; and
• An agreement with the health professional that information will not be released except as authorized by the terms of the agreement.

The confidentiality agreement may allow the health professional to release the trade secret identity to other health professionals if disclosure is needed for professional opinion. The health professional may also be allowed to write articles for medical journals or to go on speaking tours to discuss the chemical involved if there is no disclosure of the chemical identity or the facility’s relationship to the chemical. This confidentiality agreement is subject to state law and state legal contractual requirements.

Release determination

• Several types of releases are excluded from the requirements of CERCLA release reporting.
• Federally permitted releases are exempt from reporting requirements.
• CERCLA provides an exemption from release reporting for the application of pesticide products registered under FIFRA.

The first step in determining if release reporting requirements are triggered is assessing whether or not a release has occurred.

Exclusions

Note, however, that several types of releases are excluded from the requirements of CERCLA release reporting. These releases were excluded originally under CERCLA 101(22) because they are covered by other regulatory programs. The definition of release in CERCLA 101(22) specifically excludes:

• Emissions from engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engines;
• Releases of source, byproduct, or special nuclear material from a nuclear incident covered by financial protection under the Nuclear Regulatory Commission; and
• The normal application of fertilizers in accordance with product instructions.

Since these specific scenarios are excluded from the definition of release, they need not be reported to the NRC, even if a reportable quantity (RQ) has been equaled or exceeded.

CERCLA 101(22) also excludes releases in the workplace, but only with respect to a claim asserted against the employer by a facility worker. Any claims covered by worker compensation through the Occupational Safety and Health Administration (OSHA) regulations cannot be filed under CERCLA. The need for notification, however, must be determined by whether a release from a CERCLA facility or vessel enters the environment. If a release does not remain wholly contained within a building or structure, then it is a release into the environment for CERCLA’s purposes, whether or not it occurs within a workplace.

Federally permitted releases

Federally permitted releases are exempt from reporting requirements (CERCLA 103(a) and (b)). These exemptions from notification address a range of situations where releases are regulated under another program or are outside the scope of CERCLA’s purpose and include the following:

• National Pollutant Discharge Elimination System (NPDES) permits,
• Dredge and fill permits (Clean Water Act (CWA) 404),
• The Resource Conservation and Recovery Act (RCRA) permitted and interim status units,
• Underground Injection Control (UIC) permits,
• Clean dumping and incineration permits,
• Air releases under Clean Air Act (CAA) permits,
• Injection of fluids to develop crude oil or natural gas supplies,
• Discharges to publicly owned treatment works (POTWs) in accordance with pretreatment standards, and
• Releases of nuclear materials under the Atomic Energy Act (AEA).

Registered pesticides

CERCLA 103(e) provides an exemption from release reporting for the application of pesticide products registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This exemption includes the handling and storage of a pesticide product by an agricultural producer. EPA does not, however, consider the spill of a pesticide to be either an “application” of the pesticide or in accordance with the pesticide’s purpose. Consequently, such spills must be reported if all additional criteria are met.

Covered hazardous substances

• When a determination is made to regulate a substance under the CAA, CWA, RCRA, or TSCA, it automatically becomes a CERCLA hazardous substance.

Hazardous substance is defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 101(14) to include a compilation of substances listed in accordance with the Clean Air Act (CAA), Clean Water Act (CWA), Resource Conservation and Recovery Act (RCRA), and Toxic Substances Control Act (TSCA).

When a determination is made to regulate a substance under the CAA, CWA, RCRA, or TSCA, it automatically becomes a CERCLA hazardous substance and will be added to the Table 302.4 found at 40 CFR 302.4. When a substance is delisted from the CAA, CWA, RCRA, or TSCA lists, the substance remains on the hazardous substance list unless the Environmental Protection Agency (EPA) determines that there is no independent basis for retaining the hazardous substance listing. CERCLA grants EPA the authority to automatically add new substances to the list of hazardous substances codified in Table 302.4 found at 40 CFR 302.4. In a nutshell, 40 CFR 302.4 offers a list of covered hazardous substances.

In addition, according to 302.4, the release of a material that exhibits one or more characteristics (identified at 40 CFR 261.20 through 261.24) of hazardous waste, but is not specifically listed on Table 302.4, is reportable provided the material becomes a waste upon release and the amount released meets the reportable quantity (RQ).

Petroleum exclusion and other hazardous substances not reportable

• CERCLA excludes petroleum from the definition of hazardous substance, thus exempting petroleum from CERCLA regulation.
• Certain radionuclides, metals, substances that result from combustion and combustion-related activities, and air emissions from animal waste at a farm are not reportable under CERCLA.

Petroleum exclusion

Petroleum products have a statutory exclusion from the definition of hazardous substance. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 101(14) excludes certain substances from the definition of hazardous substance, thus exempting them from CERCLA regulation. These substances include petroleum, meaning crude oil or any fraction thereof which is not specifically listed as a hazardous substance. Natural and synthetic gases, or mixtures of natural and synthetic gases are also excluded. If a release of one of these substances occurs, CERCLA notification is not required.

The Environmental Protection Agency (EPA) interprets petroleum as including those amounts of hazardous substances, such as benzene, that are indigenous to crude oil or its fractions or that are normally added during the refining process. Such amounts are part of the petroleum and are excluded from regulation under CERCLA. Hazardous substances added to the petroleum or increased in concentration solely as a result of contamination during use are not part of the petroleum and are not excluded from regulation under CERCLA. Such amounts of hazardous substances are subject to CERCLA response authority, liability, and release reporting requirements.

Although the petroleum exclusion exempts release of petroleum from CERCLA 103(a) reporting requirements, it does not exempt a facility from Emergency Planning and Community Right-to-Know Act (EPCRA) 304 reporting requirements.

Other hazardous substances not reportable

There are certain types or forms of hazardous substances that are not reportable under CERCLA, even though they otherwise meet the hazardous substance listing criteria, as a result of EPA policy determinations. These types of hazardous substances are not reportable because EPA has determined that a release of these substances either does not present a substantial endangerment to human health or the environment or would impose an unnecessary burden on the National Response Center (NRC) and regulated community.

The types or forms of hazardous substances that are not reportable to the NRC are listed at 40 CFR 302.6(c) to (e). These relate to certain radionuclides, certain metals, certain substances that result from combustion and combustion-related activities, and air emissions from animal waste at a farm. Also see 302.6(b)(2) regarding circumstances when radionuclide releases are subject to notification.

“Into the environment” and vessel or facility determination factors

• Releases to the environment do not include releases that are wholly contained inside a closed containment structure.
• Notification is required for releases of hazardous substances from vessels or facilities.

“Into the environment”

Release means “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment . . . .” Therefore, it is important to understand the term environment, which means:

• The navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), and
• Any other surface water, groundwater, drinking water supply, land surface or subsurface strata, or ambient air within the U.S. or under the jurisdiction of the U.S.

Therefore, as stated, “the environment” includes all environmental media (i.e., air, water, land surface and subsurface strata).

Releases to the environment do not include releases that are wholly contained inside a closed containment structure, such as a building or an enclosed vehicle. Hazardous substances discharged in buildings or vehicles with active vents or openings, however, may become releases into the environment.

For example, a spill of a hazardous substance onto a concrete floor of a totally enclosed manufacturing facility could be released into the environment if part of that substance seeps into the ground through cracks in the concrete or volatilizes into the atmosphere via process vents. When a release exceeds or equals the reportable quantity, the facility is subject to the notification requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 103.

Vessel or facility determination

The next step in determining when a release triggers notification is to determine the origin of the release; that is, whether the release occurred from a facility or vessel. Notification is required for releases of hazardous substances from vessels or facilities.

A facility is any building, pipe, landfill, lagoon, motor vehicle, or other structure listed in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 101(9). Facility excludes consumer products in consumer use, such as a spill of paint thinner from a private home. A vessel is defined as any watercraft or other artificial contrivance used, or capable of being used, as a means of transport on water (CERCLA 101(28)).

Reportable quantity determinations and the mixture rule

• The statutory RQ is one pound for all hazardous substances unless a higher RQ had already been established under the CWA.
• There are special rules that facilities must follow when determining the RQ for releases of mixtures or solutions.

Reportable quantities (RQs)

Congress established reportable quantities (RQs) for hazardous substances that are enforceable until the Environmental Protection Agency (EPA) sets a final RQ for the substance. The statutory RQ is one pound (CERCLA 102(b)) for all hazardous substances unless a higher RQ had already been established under the Clean Water Act (CWA). CERCLA 102(a) gave EPA the authority to adjust the RQs for hazardous substances.

According to 40 CFR 302.5, the quantity listed in the column “Final RQ” for each substance in Table 302.4, or in appendix B to Table 302.4, is the reportable quantity (RQ) for that substance. Whenever the RQs in Table 302.4 and appendix B to the table are in conflict, the lowest RQ shall apply.

In addition, for unlisted hazardous substances designated at 40 CFR 302.4(b), the RQ is 100 pounds. However, unlisted hazardous wastes which exhibit toxicity have the RQs listed in Table 302.4 for the contaminant on which the characteristic of toxicity is based. Review 302.5 for details.

Mixture rule

Most hazardous substances produced, used, or stored by facilities do not exist in pure forms, but are found in mixtures or solutions. There are special rules that facilities must follow when determining the RQ for releases of mixtures or solutions.

If a mixture of hazardous substances is released and the concentration of all hazardous substances in the mixture are known, the Clean Water Act (CWA) mixture rule may be used to calculate whether an RQ of any hazardous substance has been released. RQs of different substances are not additive. This means that spilling a mixture containing half an RQ of one hazardous substance, and half an RQ of another hazardous substance does not add up to trigger reporting requirements.

The release must be reported if the RQ for any hazardous substance has been met or exceeded. If the concentrations of the hazardous substances or extremely hazardous substances (EHSs) are unknown, reporting is required when the total amount of the mixture released equals or exceeds the RQ for the component with the lowest RQ.

The CWA mixture rule can be particularly confusing when applied to Resource Conservation and Recovery Act (RCRA) hazardous wastes. RCRA has identified listed and unlisted waste streams that are regulated as hazardous wastes and thus regulated as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) hazardous substances. The RQ for each RCRA hazardous waste stream is listed in 40 CFR 302.4. RCRA wastes may be treated as mixtures only if all hazardous components and their concentrations in the mixture are known. Otherwise, the RQ for the waste stream must be used. The CWA mixture rule also applies to unlisted characteristic wastes if the concentrations of all the constituents in the waste are known.

Unlisted wastes exhibiting the characteristics of ignitability, corrosivity, and/or reactivity (ICR) have an RQ of 100 pounds. If a waste known to be hazardous solely because of the characteristic of ignitability was released into the environment, the RQ would be 100 pounds. If an unlisted ICR waste is analyzed and the concentrations of all its hazardous components are identified, the waste is no longer an unlisted waste, but one characterized by its components. Therefore, the RQ of the specific listed components of the hazardous substance can be used to determine when reporting is required.

Toxicity characteristic hazardous wastes (D004-D043) are hazardous substances under CERCLA and are listed with their applicable RQs in Table 302.4 under “Unlisted Hazardous Wastes: Characteristic of Toxicity.” Unlike other unlisted hazardous wastes (ICR), toxicity characteristic hazardous wastes have RQs specific to the contaminant on which the characteristic of toxicity is based (e.g., lead or selenium). If the composition of a waste stream can be determined, then the waste is no longer an unlisted waste, and the CWA mixture rule would apply.

“Within a 24-hour period” factor

• The last element indicating when a release is reportable is whether an amount of the hazardous substance equaling or exceeding the RQ is released over a 24-hour period.

The last element indicating when a release is reportable is whether an amount of the hazardous substance equaling or exceeding the reportable quantity (RQ) is released over a 24-hour period. This time frame refers to the time period over which a release is to be measured; it does not mean that one has 24 hours in which to report the release. Rather, reporting to the National Response Center (NRC) must occur immediately upon the discovery that an RQ has been exceeded.