Tier II Reporting
Introduction
Environmental regulations can be complicated and overlapping, often proving difficult to identify all requirements that apply to an operation. In each Related Program Index (RPI) this task is simplified by identifying implications one program applicably often has on others. This RPI uses the J.J. Keller & Associates, Inc., broad regulatory knowledge to recommend regulations and compliance programs that may also apply when Tier II reporting (at 40 CFR 370) covers an operation.
If Tier II reporting applies, you should also consider...
Hazard Communication
Not all facilities with hazardous chemicals onsite are required to participate in Tier II reporting. Applicability for Part 370 is four-fold:
- First, the facility has a hazardous chemical regulated and not exempted by the Occupational Safety and Health Administration’s (OSHA’s) Hazard Communication Standard (HCS) at 29 CFR 1910.1200;
- Second, the facility is required to prepare or make available a safety data sheet (SDS) or material safety data sheet (MSDS) for the hazardous chemical regulated by §1910.1200;
- Third, the HCS-regulated hazardous chemical is not otherwise exempted by 40 CFR 370.13; and
- Fourth, the HCS-regulated hazardous chemical is present onsite at any one time at the facility in an amount that meets or exceeds established thresholds at 40 CFR 370.10.
There is no list of Tier II reportable chemicals, so the first two applicability criteria above make Tier II reporting highly dependent on HCS applicability. Put another way, if a hazardous chemical does not fall under the HCS, it is not Tier II reportable. Moreover, if a chemical is Tier II reportable, it is covered by the HCS, so the HCS provisions must be met by the facility. Those provisions include hazard classification, labeling, SDSs, training and information, and trade secrets.
The HCS covers “any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency,” unless exempted by subparagraph 1910.1200(b)(6). The HCS, and hence 40 CFR 370, exempts the 12 chemical types under subparagraph 1910.1200(b)(6).
According to the HCS, chemical manufacturers and importers shall obtain or develop an SDS for each non-exempt hazardous chemical they produce or import. Employers shall have an SDS or MSDS in the workplace for each non-exempt hazardous chemical which they use. That means these HCS-covered chemical manufacturers/importers and employers must also refer to 370.10 and 370.13 to determine if they meet the third and fourth applicability criteria of Part 370 and are required to submit a Tier II form(s).
Regulatory citation:
- 29 CFR 1910.1200 – Hazard Communication
Related Compliance Network subject:
Safety Data Sheet Reporting
EPA regulation 40 CFR 370 calls for two types of reporting — Tier II reporting and SDS/MSDS reporting. Tier II reporting regulations are authorized by Emergency Planning and Community Right-to-Know Act (EPCRA) section 312, but SDS/MSDS reporting regulations are authorized by EPCRA section 311. While Tier II and SDS/MSDS reporting requirements are different, their applicability provisions and exemptions are the same. Therefore, if a facility is required to Tier II report per paragraph 370.10(a), the facility is also required to do SDS/MSDS reporting.
Section 311 requires facilities that have SDSs/MSDSs for chemicals held above certain threshold quantities to submit either copies of their SDSs/MSDSs or a list of these chemicals, to the State Emergency Response Commission (SERC), Local Emergency Planning Committee (LEPC), and local fire department. If the facility owner or operator chooses to submit a list instead of the SDSs/MSDSs, it must include the chemical or common name of each substance and identify the applicable hazard categories.
Facilities that start using a covered hazardous chemical at or above thresholds at §370.10 or increase the quantity of a covered hazardous chemical to at or above threshold amounts must submit SDSs/MSDSs or a list of these chemicals within three months of triggering reporting. Facilities must also provide a revised SDS/MSDS or list if significant new information is discovered about the covered hazardous chemical.
Tier II reporting and SDS/MSDS reporting also relate in the manner in which mixtures are reported. Reports may be made for each covered component of a mixture or for the mixture itself. The catch is, for each specific mixture, the reporting option used must be consistent for both Tier II and SDS/MSDS reporting, unless it is not possible to do so. This means that if a facility reports on a specific mixture as a whole for SDS/MSDS reporting, the facility must report on that mixture as a whole for Tier II reporting too (unless it is not possible).
Regulatory citations:
- 29 CFR 1910.1200 – Hazard Communication
- 40 CFR 370 – Hazardous Chemical Reporting: Community Right-to-Know
Related Compliance Network subjects:
Emergency Planning and Community Right-to-Know Act
EPCRA aims to prepare and protect the community from chemical accidents and provide information on potential chemical hazards to the community and first responders. EPCRA has five major provisions:
- Emergency planning (EPCRA section 301 to 303),
- Emergency release notification (EPCRA section 304),
- Hazardous chemical storage reporting requirements (EPCRA section 311 and 312),
- Toxic chemical release inventory (EPCRA section 313), and
- Trade secrecy (EPCRA section 322).
Tier II reporting is authorized by section 312 of EPCRA, which means it is only one part of this larger law. For example, while Tier II reporting covers more than extremely hazardous substances (EHSs), an important part of Tier II reporting is reporting EHSs to state and local authorities per 40 CFR 370. If a facility has EHSs onsite, it will need to also consider whether it falls under the emergency planning and release notification requirements of EPCRA, codified at 40 CFR 355.
Likewise, some chemicals covered for Tier II reporting may also be listed as a chemical or chemical category for toxic chemical release inventory (TRI) reporting under 40 CFR 372. TRI reporting kicks in when certain toxic chemicals are manufactured, processed, or otherwise used at or above TRI thresholds in certain industries with 10 or more full-time employees.
Finally, EPCRA section 322, codified at 40 CFR 350 allows facilities to file trade secret claims in their EPCRA 303, 311, 312, and 313 reports, including Tier II reports. Only the specific chemical identity may be claimed as a trade secret, though a generic class for the chemical must be provided.
Regulatory citations:
- 40 CFR 350 – Trade Secrecy Claims for Emergency Planning and Community Right-to-Know Information and Trade Secret Disclosures to Health Professionals
- 40 CFR 355 – Emergency Planning and Notification
- 40 CFR 370 – Hazardous Chemical Reporting: Community Right-to-Know
- 40 CFR 372 – Toxic Chemical Release Reporting: Community Right-to-Know
Related Compliance Network subject:
CERCLA Hazardous Substance Release Notification
Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 103 and EPA regulation 40 CFR 302, a person must immediately notify the National Response Center (NRC) in the event of a hazardous substance release into the environment that exceeds a reportable quantity (RQ). The RQ for CERCLA release reporting is not the same thing as a threshold level for Tier II reporting, however.
Yet, facilities will discover some overlap between the specific hazardous substances listed in 40 CFR 302.4 and the universe of hazardous chemicals covered by Tier II reporting at 40 CFR 370. If a Tier II covered facility suffers a release, it is important to immediately notify the NRC if that release falls under CERCLA release reporting applicability requirements.
Release means “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment …”. 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.
Regulatory citations:
- 40 CFR 302 – Designation, Reportable Quantities, and Notification
Related Compliance Network subject:
- CERCLA, SARA, EPCRA (Topic: Release Notifications, Toxic/Hazardous Substance Releases)
Discharge of Oil and Oil Pollution Prevention
EPA regulation 40 CFR 110 is called “Discharge of Oil” but is also known as the “sheen rule.” The regulation applies to the discharge of oil prohibited by law, including, but not limited to, discharge quantities that cause a sheen or discoloration on the surface of the water or adjacent shorelines. A qualifying discharge triggers requirements to report to the National Response Center. The failure to report such a discharge may result in criminal sanctions under the Clean Water Act.
EPA regulation 40 CFR 112 is called “Oil Pollution Prevention.” Subparts A through C of 40 CFR 112 are often referred to as the spill prevention, control, and countermeasure regulations, or simply the “SPCC rule,” focusing primarily on facility-related oil spill prevention, preparedness, and response.
Part 112 also includes requirements for facility response plans (FRPs) that address oil discharge preparedness requirements for a subset of SPCC-regulated facilities. These requirements define who must prepare and submit an FRP and what must be included in the plan. The regulations, often referred to as the “FRP rule,” are found in Subpart D of 40 CFR 112 (and related appendices).
Oil (such as animal and vegetable oil, fats, or greases; petroleum oil; and other non-petroleum oils) are generally not exempted from Tier II reporting. However, Tier II reporting is not required for hazardous wastes regulated by EPA under the Resource Conservation and Recovery Act (RCRA), and this exemption may include used oil and certain waste oils. Other possible exemptions are listed at 29 CFR 1910.1200(b)(6) and 40 CFR 370.13.
If an oil is not otherwise exempted from Tier II, a facility may have to straddle the Tier II, Discharge of Oil, SPCC, and FRP programs at the same time, if applicable. However, it should be noted that SPCC and FRP only cover non-transportation-related facilities, apply only when specific thresholds are exceeded, and offer a number of exclusions. A noteworthy SPCC/FRP exclusion is for containers less than 55 gallons.
Regulatory citations:
- 40 CFR 110 – Discharge of Oil
- 40 CFR 112 – Oil Pollution Prevention
Related Compliance Network subjects:
- Oil Spill Prevention
- Tank Systems (Topic: Aboveground Storage Tanks)
Stormwater
Depending on your facility and its hazardous chemical operations, you may need to consider the impacts of stormwater discharges. Facilities that store chemical containers outdoors at any time will need to address the potential for stormwater runoff hazards through secondary containment, National Pollutant Discharge Elimination System (NPDES) permitting, or both. The risks posed by hazardous chemicals would fall under the “industrial activity” discharge type.
The term “stormwater discharge associated with industrial activity” means a stormwater discharge from one of several categories of industrial activity defined at 40 CFR 122.26. Facilities with hazardous chemicals should consider any potential stormwater risks in their chemical storage areas or any related risks that may present themselves during transport or preparation for shipping.
Regulatory citations:
- 40 CFR 122.26 – Storm water discharges (applicable to State NPDES programs, see § 123.25)
Related Compliance Network subject:
Toxic Substances Control Act
TSCA directs EPA to evaluate the lifecycle (i.e., manufacture, importation, processing, distribution, use, and disposal) of industrial and commercial chemicals for unreasonable risks and, if warranted, to regulate such chemicals. In fact, EPA has issued and continues to issue regulations designed to gather health, safety, and exposure information on, require testing of, and control exposure to chemical substances and mixtures.
To prevent unreasonable risks, EPA may select from a broad range of control actions under TSCA, with everything from requiring hazard-warning labels to outright bans on the manufacture or use of especially hazardous chemicals. Drugs, cosmetics, foods, food additives, pesticides, and nuclear materials are exempt from TSCA, however.
A Tier II covered facility may find that its chemicals also come under TSCA coverage. TSCA does not just cover “toxic” chemicals, but rather “chemical substances,” as defined in the statute. Both Tier II and TSCA have broad coverage of chemicals. The major TSCA provisions call for:
- Companies to generate hazard and exposure information through specific tests or measurements on chemicals in certain circumstances;
- Premanufacture notices (PMNs);
- Significant new use notices (SNUNs);
- Adherence to the regulations of existing chemical substances and mixtures;
- Chemical data reporting (CDR) and other reporting and retention of information about chemical production, use, and possible adverse effects to human health and the environment;
- Export notifications; and
- Import certification.
Regulatory citations:
- 40 CFR 700 to 799 – Toxic Substances Control Act
Related Compliance Network subject:
Pesticides
While pesticides are exempt from OSHA Hazard Communication labeling, they are not wholly exempted from the Hazard Communication Standard. Therefore, unless otherwise exempted at 29 CFR 1910.1200(b)(6) or 40 CFR 370.13, pesticides are covered Tier II reportable chemicals when Tier II thresholds are met or exceeded.
However, EPA is also charged with ensuring that pesticides do not pose unreasonable risks to the public and to the environment. The agency has authority under the law to regulate the use of pesticides. Most pesticides may legally be sold in the U.S. if they have been “registered” by EPA and if they bear an EPA registration number.
Federal pesticide registration, however, is only the first step in preventing pesticide risks. Other regulations call for proper pesticide labeling, effective pesticide management, restricted use of certain pesticides, and the protection of agricultural workers from pesticide hazards, for example. EPA also regulates pesticide residues on food and pesticide imports and exports and has other responsibilities under the law.
State agencies, too, may regulate and enforce pesticide laws and regulations for their jurisdictions. In general, states have primary authority for compliance monitoring and enforcing against illegal pesticide use. Anyone applying pesticides must comply with federal and state laws.
Regulatory citations:
- 40 CFR 150 to 189 – Pesticide Programs
Related Compliance Network subject:
Risk Management Program
The Risk Management Program regulation at 40 CFR 68 requires owners and operators of a facility that manufactures, uses, stores, or otherwise handles more than a threshold quantity of a listed regulated substance in a process to implement a set of hazard assessment, accident prevention, and emergency response elements and submit a single written Risk Management Plan to the EPA or the state implementing agency for all covered processes at the facility.
The universe of chemicals regulated by Tier II reporting and that of RMP are not identical. Yet, if a chemical is regulated by RMP, there’s a good chance it is a covered hazardous chemical under 40 CFR 370. However, the thresholds associated with Tier II and RMP chemicals are not the same, so a facility may, for example, come under one regulation but not the other, based on thresholds.
Both Tier II reporting and RMP require the submission of information to help local fire, police, and emergency response personnel in their preparation for and response to chemical accidents, and it is also useful for citizens who wish to understand the chemical hazards in their communities. The difference between the submitted Tier II and RMP information lies in the type of information provided — Tier II is a chemical inventory, and RMP is a written plan to prepare and prevent chemical risks.
Regulatory citations:
- 40 CFR 68 – Chemical Accident Prevention Provisions
- 40 CFR 68.130 – List of Substances
Related Compliance Network subject:
Process Safety Management
The PSM Standard at 29 CFR 1910.119 contains requirements for the management of hazards associated with processes using chemicals deemed to be “highly hazardous.” PSM applies to those companies that deal with any of more than 130 specific toxic and reactive chemicals in listed quantities, any Category 1 flammable gas, or a flammable liquid with a flashpoint below 100°F (37.8°C) onsite in one location, in a quantity of 10,000 pounds or more (with a few exceptions).
The world of chemicals regulated by Tier II reporting and that of PSM are not identical. One could argue that if a chemical is regulated by PSM, there’s a good chance it is a covered hazardous chemical under 40 CFR 370. However, the thresholds associated with Tier II and PSM chemicals are not the same, so a facility may, for example, come under one regulation but not the other, based on thresholds.
Finally, while both Tier II reporting and PSM requirements may provide protections from chemical hazards such as explosion, fire, and chemical release, the two programs differ in who or what they aim to protect. Tier II intends to protect public health, safety, and the environment, but PSM is geared to protect employees at the facility.
Regulatory citations:
- 29 CFR 1910.119 and appendices – Process Safety Management of Highly Hazardous Chemicals
Related Compliance Network subject:
- Hazardous Materials Safety – OSHA (Topic: Process Safety Management)
Occupational Safety and Health Act
When a regulation like 40 CFR 370 covers a vast universe of hazardous chemicals, it is likely that other chemical-specific and chemical-related regulations also apply to the same facility. While EPA is charged with protecting the environment and the general public, OSHA’s mission is to protect employees from workplace hazards.
Hazardous chemicals pose various physical and health hazards to employees when used or stored in the workplace. As such, OSHA has several regulations that require employers to protect employees from chemical-specific hazards. These include, but are not limited to:
- 29 CFR 1910 Subpart H, Hazardous Materials — This subpart covers compressed gas, acetylene, hydrogen, oxygen, nitrous oxide, flammable liquids, spray finishing with flammable and combustible materials, explosives, blasting agents, liquified petroleum gas, and anhydrous ammonia.
- 29 CFR 1910 Subpart Z, Toxic and Hazardous Substances — This subpart covers air contaminants, asbestos, coal tar pitch volatiles, 4-nitrobiphenyl, alpha-naphthylamine, methyl chloromethyl ether, 3,′-dichlorobenzidine (and its salts), bis-chloromethyl ether, beta-naphthylamine, benzidine, 4-aminodiphenyl, ethyleneimine, beta-propiolactone, 2-acetylaminofluorene, 4-dimethylaminoazo-benezene, N-nitrosodimethylamine, vinyl chloride, inorganic arsenic, beryllium, lead, chromium (VI), cadmium, benzene, coke oven emissions, cotton dust, 1,2-dibromo-3-chloropropane, acrylonitrile, ethylene oxide, formaldehyde, methylenedianiline, 1,3–butadiene, methylene chloride, respirable crystalline silica, and ionizing radiation.
Note that ionizing radiation is not Tier II reportable because it is exempted from the Hazard Communication Standard.
OSHA also offers other regulations to prevent exposure to, mitigate, or communicate chemical hazards, including:
- 29 CFR 1910.119, Process Safety Management of Highly Hazardous Chemicals — This regulation contains requirements for the management of hazards associated with processes that use chemicals deemed to be “highly hazardous.”
- 29 CFR 1910.120, Hazardous Waste Operations and Emergency Response (HAZWOPER) — Note that hazardous waste is not Tier II reportable. However, this standard, among other things, also regulates emergency response operations involving releases of or substantial threats of releases of hazardous substances.
- 29 CFR 1910.122 to .126, Dipping and Coating Operations — This standard applies when an employer uses a dip tank containing a liquid other than water to clean or coat an object, alter the surface of an object, or change the character of an object.
- 29 CFR 1910 Subpart I, Personal Protective Equipment — This subpart goes over requirements for eye, face, respiratory, hand, and other personal protective equipment, as well as protective clothing.
- 29 CFR 1910.146, Permit-required Confined Spaces — This standard regulates practices and procedures to protect employees in general industry from the hazards of entry into permit-required confined spaces.
- 29 CFR 1910 Subpart L, Fire Protection — This subpart covers fire brigade operations, portable and fixed fire suppression equipment, fire detection systems, and employee alarm systems.
- 29 CFR 1910.178, Powered Industrial Trucks — This standard includes provisions for prohibited locations for certain powered industrial trucks, fuel handling and storage, and changing and charging storage batteries. Note: Lead acid batteries are mixtures of sulfuric acid and lead, which makes lead acid batteries or their chemical components Tier II reportable, in accordance with §370.14.
- 29 CFR 1910.1020, Access to Employee Exposure and Medical Records — This standard provides employees and their designated representatives a right of access to relevant exposure and medical records. Employee exposure records include safety data sheets, chemical monitoring and measuring records, and more.
- 29 CFR 1910.1200, Hazard Communication — This standard is intended to ensure that the hazards of non-exempted chemicals that are produced or imported are classified, and that information concerning the classified hazards is transmitted to employers and employees.
- 29 CFR 1910.1201, Retention of DOT Markings, Placards and Labels — This standard calls for employers to retain Department of Transportation hazardous materials markings, labels, and placards on a package, vehicle, and freight container until the container is sufficiently cleansed of residue and purged of vapors.
- 29 CFR 1910.1450, Occupational Exposure to Hazardous Chemicals in Laboratories — This regulation applies to all employers engaged in the laboratory use of hazardous chemicals. The regulation defines “laboratory use.”
Regulatory citations:
- 29 CFR 1910 Subpart H – Hazardous Materials
- 29 CFR 1910 Subpart I – Personal Protective Equipment
- 29 CFR 1910.146 – Permit-required Confined Spaces
- 29 CFR 1910 Subpart L – Fire Protection
- 29 CFR 1910.178 – Powered Industrial Trucks
- 29 CFR 1910 Subpart Z – Toxic and Hazardous Substances
Related Compliance Network subjects:
CSB Accidental Release Reporting
The U.S. Chemical Safety and Hazard Investigation Board (CSB) regulation at 40 CFR 1604 requires an owner or operator of a stationary source to submit a report to CSB for any accidental chemical release resulting in a:
- Fatality;
- Injury, or illness that results in a death or inpatient hospitalization, or
- Property damage equal to or greater than $1 million.
A release amount that results in any of the above consequences would qualify for CSB reporting. The CSB reporting requirements for how, what, and when to report an accidental release are specified in Part 1604, and CSB provides a reporting form on its website.
The purpose of Part 1604 is to ensure that the CSB receives rapid, accurate reports of any qualifying accidental release, so that the agency can decide which incidents to investigate. This differs from the purpose of 40 CFR 370, which is to provide state and local authorities with information about the chemicals present at a facility so that emergency responders can better prepare and mitigate a potential chemical incident at the facility.
An “accidental release” is defined by CSB as an unanticipated emission of a regulated substance or other extremely hazardous substance (EHS) from the stationary source into the atmosphere inside or outside a stationary source. According to CSB, regulated substances are those listed under 40 CFR 68, the Risk Management Program standard, and the term EHS means any substance that may cause any of the three consequences listed earlier.
This CSB definition of EHS is broader than the one for Tier II reporting, which only includes substances listed at Appendices A and B of 40 CFR 355. However, Tier II reporting also covers non-EHSs.
Regulatory citation:
- 40 CFR 1604 – Reporting Accidental Releases
Related Compliance Network subjects:
- CERCLA, SARA, EPCRA (Topic: Release Notifications)
- Risk Management Program
Chemical Facility Anti-Terrorism Standards
The Chemical Facility Anti-Terrorism Standards (CFATS) regulation applies to any facility that possesses any chemical of interest (COI) at or above the screening threshold quantity (STQ) and concentration listed in the standards. The CFATS list includes more than 300 chemicals based on the risk they pose due to potential release, theft (or diversion), or sabotage.
It is not necessarily the case that if a chemical is required to be Tier II reported it is covered by CFATS or vice versa. The CFATS COI list is targeted, and Tier II reporting requirements have no overall list of covered chemicals. Instead Tier II requirements rely on OSHA Hazard Communication Standard coverage, along with a number of exemptions. Because both Tier II and CFATS programs cover hazardous chemicals, a facility will still find it worth checking to determine if any of its hazardous chemicals are not only Tier II covered but also CFATS covered.
Note that thresholds between the two programs differ. What’s more, the requirements of the CFATS program, administered by the Cybersecurity and Infrastructure Security Agency (CISA), are focused on security at high-risk facilities; whereas, Tier II reporting aims to protect public health, safety, and the environment from chemical-related explosion, fire, and releases.
Regulatory citations:
- 6 CFR 27 – Chemical Facility Anti-Terrorism Standards
- 6 CFR 27 Appendix A – DHS Chemicals of Interest
Related Compliance Network subjects:
- Facility Security (SMS topics: Chemical Facility Security, Terrorism)
- Transportation Security
Hazardous Materials Transportation
The Department of Transportation’s (DOT) Hazardous Materials Regulations (HMR) at 49 CFR 171 to 185 apply not only to persons who transport hazardous materials in commerce but also persons who cause hazardous materials to be transported in commerce. The latter persons are also known as “shippers.”
It should be noted that these HMR-covered persons, including shippers, must comply with the training requirements at 49 CFR 172.704. These requirements for “hazmat employees,” must be completed every three years and cover training topics including general awareness, safety, security, and function-specific topics. It is the responsibility of the organization to identify these employees, and it can be a source of confusion. One key thing to remember is that anyone at your organization who signs a shipping paper is a hazmat employee, since this person certifies that the material has been managed and packaged correctly with all the proper marking, labeling, and placarding.
Regulatory citations:
- 49 CFR 171 to 185 – Hazardous Materials Regulations
Related Compliance Network subjects: