Must facility owners/operators report for previous years if they were subject to Tier II reporting but failed to make submissions? How far back do they go for back-filing (or back reporting)?

eDisclosure

Regardless, if a facility owner or operator discovers that it missed the annual March 1 Tier II deadline or failed to report in previous years, the formal approach is to submit a self-disclosure with federal EPA, using its eDisclosure System. The federal EPA eDisclosure webpage is at https://www.epa.gov/compliance/epas-edisclosure. That webpage explains the policies and instructions for making a self-disclosure. If the agency’s self-disclosure policies are met AND the late reports are submitted to the proper authorities, then civil penalties “may” be reduced or eliminated.

It is worth noting that self-disclosures through the eDisclosure System are made frequently for violations related to the Emergency Planning and Community Right-to-Know Act (EPCRA), more than any other statute. Tier II reporting is an EPCRA requirement.

Back-filing

Some facility owners or operators prefer not to self-disclose but to instead complete and submit late Tier II (or state-equivalent) reports to the regulating agency(ies) to which the owner or operator would have sent the report(s). Back-filing is not an officially accepted approach, however. Generally, these facility owners or operators would turn to the statute of limitations to determine the previous years for which to submit missing reports. The regulating agency(ies) “might” accept this back-filing approach for untimely reports but will document them as late submissions. While back-filing does not wipe away late-submission violations, and penalties are still a risk, the facility owner or operator has documentation that it is caught up with reporting, in the event of an inspection.

Statute of limitations

An administrative law judge in a Tier II case indicates that EPCRA itself contains no statute of limitations for measuring the timeliness of EPA's prosecution. Accordingly, the five-year federal statute of limitations contained in a different statute, 28 U.S.C. 2462, applies to Tier II reporting. The judge states that for each separate failure, the federal five-year statute of limitations begins to run from the time that the owner or operator should have filed the emergency and hazardous chemical inventory form but didn’t. Failure to submit the Tier II inventory forms by the filing date of March 1 for several years results in the accrual of a violation of 40 CFR 370, according to the judge.