HHS General Administration Manual Part 30 Environmental Protection

(as of February 25, 2000)

SUBJECT: Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA) Requirements

30-60-00-- Background
30-60-05-- Applicability
30-60-10-- Responsibilities
30-60-20-- Emergency Planning
30-60-30-- Notification of Release of Extremely Hazardous Substance
30-60-40-- Material Safety Data Sheet Reporting
30-60-50-- Emergency and Hazardous Chemical Inventory Reporting
30-50-60-- Treatment of Mixtures in MSDS and Inventory Reporting
30-60-70-- Toxic Chemical Release Inventory Reporting
30-60-80-- Public Availability of Information; Withholding and Disclosure of Trade Secrets
30-60-90-- Compliance
30-60-100-- Civil and Criminal Penalties

30-60-00 -- Background

EPCRA was enacted in 1986 as Title III of the Superfund Amendments and Reauthorization Act (SARA), Pub. L. No. 99-499, 100 Stat. 1729 (codified at 42 U.S.C. ''11001-11050(1988)). Although they are sometimes connected by their emergency notification and reporting requirements, EPCRA is a separate act from the "Superfund" law or, as it is officially titled, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).

EPCRA's provisions form two primary programs: (1) emergency planning, and (2) community right-to-know. EPCRA establishes a mechanism for providing the public with important information on the hazardous and toxic chemicals in their communities, and it creates emergency planning and notification requirements to protect the public in the event of a release of extremely hazardous substances. The law requires local communities to prepare plans for dealing with emergencies relating to the release of extremely hazardous substances from facilities within those communities. EPCRA also provides the public and local and state governments with the right to obtain information concerning the types, amount, location, storage, use, disposition, and possible health effects from the release of hazardous and extremely hazardous substances from facilities that are in their communities.

Facilities that are subject to EPCRA are required to provide information and reports to EPA and state and local groups. Five distinct reporting requirements are contained in EPCRA:

  1. Emergency planning (30-60-20);

  2. Notification of release (30-60-30);

  3. Material safety data sheet submission (30-60-40);

  4. Emergency and hazardous chemical inventory reporting (30-60-50), and

  5. Toxic chemical release reports (30-60-70).

Each of these reporting requirements and other facility responsibilities are described in the following sections.

30-60-05 -- Applicability

  1. Executive Order 12856. EPCRA applies to "persons". The term "person" is defined in the act to include individuals, partnerships, corporations, states, and municipalities. The definition does not cover most United States government agencies. EPCRA is made applicable to federal agencies by Executive Order 12856. E.O. 12856 incorporates by reference all definitions found in EPCRA and EPA implementing regulations, except that it modifies the term "person" to include Federal executive agencies as defined in 5 U.S.C. ' 105 (1988). Executive agencies are Executive Departments, government corporations, and independent establishments of the United States. HHS is an Executive Department and is subject to EPCRA because of Executive Order 12856.

  2. Agency Facilities. Executive Order 12856 provides that EPCRA applies to all Federal executive agencies that either own or operate a "facility" as that term is defined in EPCRA, if such facility meets the statute's threshold requirements for compliance. The statutory definition of facility is:

  3. all buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person). For purposes of [emergency release notification], the term includes motor vehicles, rolling stock, and aircraft (42 U.S.C. ' 11049(4)).

    EPA regulations revise the statutory definition of facility to include "manmade structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use." (40 CFR '' 355.20, 370.2). The purpose of the revision was to clarify that the definition applies to certain subsurface structures.

  4. Covered Facilities. Each Federal agency must apply all of the provisions of Executive Order 12856 to each of its covered facilities, including those facilities which are subject, independent of the Executive order, to the provisions of EPCRA (e.g., certain Government-owned/contractor-operated facilities (GOCO's), for chemicals meeting EPCRA thresholds). Executive Order 12856 does not apply to Federal agency facilities outside the customs territory of the United States, such as United States diplomatic and consular missions abroad. EPA may be consulted to determine the applicability of Executive Order 12586 to particular OPDIV/STAFFDIV facilities.

  5. Preliminary List of Covered Facilities. The Secretary was required by Executive Order 12856 to provide the EPA Administrator by December 31, 1993, with a preliminary list of facilities that potentially meet the requirements for reporting under the threshold provisions of EPCRA.

30-60-10 -- Responsibilities

  1. HHS. Executive Order 12856 makes the Secretary responsible for ensuring HHS compliance with emergency planning and community right-to-know provisions established pursuant to all implementing regulations issued pursuant to EPCRA. The Order requires Federal agencies to report in a public manner toxic chemicals entering any waste stream from their facilities, including any releases to the environment, and to improve local emergency planning, response, and accident notification. The objective of Executive Order 12856 is to make the Federal Government a good neighbor to local communities by becoming a leader in providing information to the public concerning toxic and hazardous chemicals and extremely hazardous substances at Federal facilities, and in planning for and preventing harm to the public through the planned or unplanned releases of chemicals.

  2. OPDIVs/STAFFDIVs. The head of each OPDIV/STAFFDIV is responsible for compliance with the provisions of EPCRA as described in this chapter and Executive Order 12856. An OPDIV/STAFFDIV must comply with provisions set forth in sections 301 through 312 of EPCRA, all implementing regulations, and future amendments to these authorities, in light of any applicable guidance as provided by EPA. Dates for compliance with individual sections of EPCRA vary and are set forth in the appropriate sections below. Executive Order 12856 provides that the compliance dates are not intended to delay implementation of earlier timetables already agreed to by Federal agencies and are inapplicable to the extent they interfere with those timetables. Compliance with EPCRA means compliance with the same substantive, procedural, and other statutory and regulatory requirements that would apply to a private person.

  3. Agency Contractors. Executive Order 12856 requires each Federal agency to provide, in all appropriate future contracts, for the contractor to supply all information the Federal agency deems necessary for it to comply with the order. To the extent that compliance with the Executive Order is made more difficult due to lack of information from existing contractors, OPDIVs/STAFFDIVs must take practical steps to obtain the information needed to comply with the Executive Order from such contractors. Nothing in Executive Order 12856 alters the obligations which GOCO's and Government corporation facilities have under EPCRA independent of the Executive Order or subjects such facilities to EPCRA if they are otherwise excluded. However, each OPDIV/STAFFDIV shall include the releases and transfers from all such facilities when meeting all of the organization's responsibilities under Executive Order 12856.

30-60-20 -- Emergency Planning (EPCRA 301-30; 42 U.S.C. 11001-30)

  1. Basic Requirement. Facilities that are covered by EPCRA must notify the State emergency response commission that they are subject to the Act's emergency planning provisions. A local emergency planning committee, comprised of state and local officials, community organizations, and facility representatives, must prepare an emergency plan for responding to the release of extremely hazardous substances in the local community. A covered facility must provide any information that is necessary for developing the local emergency plan. The facility must also notify the local committee of relevant changes at the facility that may affect the emergency plan and designate an emergency planning coordinator who will participate in the emergency planning process. EPA regulations governing emergency planning and notification under EPCRA are contained in 40 CFR Part 355.

  2. Applicability of Requirement. A facility is subject to the EPCRA emergency planning requirements if an amount of any extremely hazardous substance equal to or in excess of the threshold planning quantity (TPQ) established for that substance is present at the facility. An "amount of any extremely hazardous substance" means the total amount of an extremely hazardous substance present at any one time at a facility at concentrations greater than one percent by weight, regardless of location, number of containers, or method of storage.

  3. E.O. 12856 makes the EPCRA emergency planning requirements in Sections 302 and 303 of the Act applicable to Federal agencies. A Governor or a State commission may designate additional facilities in the State which shall be subject to the EPCRA emergency planning requirements. The authority of a Governor or a State commission to designate additional facilities does not extend to Federal executive agencies (except government corporations).

  4. Extremely Hazardous Substances and Threshold Planning Quantities. An "extremely hazardous substance" is defined in EPA regulations to mean a substance that is listed in Appendices A (in alphabetical order) and B (by CAS number) of 40 CFR Part 355. The Appendices contain tables which indicate the threshold planning quantity (TPQ) for each extremely hazardous substance.

    EPCRA authorizes EPA to modify the list and TPQ of extremely hazardous substances from time to time based on the toxicity, reactivity, volatility, dispersability, combustibility, and flammability of a substance. Because extremely hazardous substances are periodically removed or added to the list, and threshold quantities may be revised, facilities must be sure that the list of extremely hazardous substances they consult is current. EPA regulations in 40 CFR ' 355.30(e) (1992) set forth the rules and techniques for calculating the TPQ of extremely hazardous substances that are solids or present in mixtures, solutions, and molten materials.

  5. State and Local Planning Groups. EPCRA requires the Governor of each State or Chief Executive Officer of an Indian Tribe to appoint an Emergency Response Commission ("commission"). The commission must designate emergency planning districts in order to facilitate preparation and implementation of an emergency plan. The commission must also appoint local emergency planning committees ("committee") in each emergency planning district and supervise and coordinate the activities of such committees.

    Local committees include, at a minimum, representatives from each of the following groups or organizations: elected State and local officials; law enforcement, civil defense, firefighting, first aid, health, local environmental, hospital, and transportation personnel; broadcast and print media; community groups; and owners and operators of facilities subject to EPCRA.

  6. Local Emergency Plan. Each local emergency planning committee was to have completed preparation of a local emergency plan not later than October 17, 1988. The committee must review such plan once a year, or more frequently as changed circumstances in the community or at any facility may require. The rules of the committee must include provisions for public notification of committee activities, public meetings to discuss the emergency plan developed by the committee, public comments on the emergency plan and response to such comments by the committee, and distribution of the emergency plan. EPCRA requires that each local emergency plan prepared by a local committee shall include (but is not limited to) each of the following:

    1. Identification of facilities subject to the EPCRA's requirements that are within the emergency planning district, identification of routes likely to be used for the transportation of substances on the list of extremely hazardous substances, and identification of additional facilities contributing or subjected to additional risk due to their proximity to facilities subject to EPCRA requirements, such as hospitals or natural gas facilities;

    2. Methods and procedures to be followed by facility owners and operators and local emergency and medical personnel to respond to any release of such substances;

    3. Methods and procedures to be followed by facility owners and operators and local emergency and medical personnel to respond to any release of such substances;

    4. 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 notification requirements of EPCRA Section 11004);

    5. Methods for determining the occurrence of a release, and the area or population likely to be affected by such release;

    6. A description of emergency equipment and facilities in the community and at each facility in the community subject to EPCRA requirements, and an identification of the persons responsible for such equipment and facilities;

    7. Evacuation plans, including provisions for a precautionary evacuation and alternative traffic routes;

    8. Training programs, including schedules for training of local emergency response and medical personnel; and

    9. Methods and schedules for exercising the emergency plan.

  7. Review of Emergency Plans. After completion of an emergency plan for an emergency planning district, the local emergency planning committee must submit a copy of the plan to the State emergency response commission of each State in which such district is located. The commission must review the plan and make recommendations to the committee on revisions of the plan that may be necessary to ensure coordination of such plan with emergency response plans of other emergency planning districts.

    Regional response teams, as established pursuant to CERCLA's National Contingency Plan (42 U.S. C. ' 9605), may review and comment upon an emergency plan or other issues related to preparation, implementation, or exercise of such a plan upon request of a local emergency planning committee. Such review may not delay implementation of the plan. The national response team must publish guidance documents for preparation and implementation of emergency plans.

  8. Emergency Planning Notification. Each covered facility shall notify the commission for the state in which the facility is located that the facility is subject to EPCRA emergency planning requirements.

    Thereafter, if a substance on the list of extremely hazardous substances first becomes present at the facility in excess of the TPQ established for such substance, or if there is a revision of the list of extremely hazardous substances and the facility has present a substance on the revised list in excess of the TPQ established for such substance, the covered facility shall notify the state emergency response commission and the local emergency planning committee within 60 days after such acquisition or revision that the facility is subject to the EPCRA emergency planning requirements. (EPCRA, ' 302(c)).

  9. Provision of Information and Technical Assistance.

    1. Provision of Information. Upon request of the local committee, the facility must promptly provide to the committee any information necessary for development or implementation of the local emergency plan. Executive Order 12856 provides that all information necessary for the applicable local committee to prepare or revise the local emergency plan must also be provided. A covered facility shall inform the local emergency planning committee of any changes occurring at the facility which may be relevant to emergency planning.

      EPCRA section 322 (42 U.S.C. ' 11042) provides for the withholding of certain trade secret information, provided the claim of trade secrecy is substantiated in accordance with EPA regulations. Withholding and disclosure of trade secret information is discussed in section 30-60-80.

    2. Technical Assistance. OPDIVs/STAFFDIVs, to the extent practicable, shall provide technical assistance, if requested, to local emergency planning committees in the development of emergency plans and in fulfillment of their community right-to-know and risk reduction responsibilities.

30-60-30 -- Notification of Release of Extremely Hazardous Substance (EPCRA 304; 42 U.S.C. 11004)

  1. Basic Requirement. A facility must immediately notify the local committee for any area likely to be affected, and the commission of any state likely to be affected, of off-site spills or any releases from the facility of a "reportable quantity" (RQ) of an EPCRA "extremely hazardous substance" or a CERCLA "hazardous substance". The initial report must be made by such means as telephone, radio, or in person. A follow-up written report must be furnished to the committee and commission. EPA regulations governing notification of release of an extremely hazardous substance are contained in 40 CFR Part 355.

  2. Applicability. The EPCRA emergency release notification requirements apply to any facility:

    1. at which a hazardous chemical is produced, used, or stored; and

    2. at which there is release of a reportable quantity of any extremely hazardous substance or CERCLA hazardous substance.

    Executive Order 12856 provides that the release notification requirements in EPCRA section 304 (42 U.S.C. ' 11004) shall be effective beginning January 1, 1994.

    OPDIVs/STAFFDIVs should be aware that the release notification requirements of EPCRA section 304 covers more facilities than the emergency planning requirements of EPCRA sections 301-303. An OPDIV/STAFFDIV facility must notify the local emergency planning committee of a release under section 304 even if a section 302(b) "threshold planning quantity" of a substance is not present. Furthermore, section 304 is the only section of EPCRA that applies to Atransportation facilities."

  3. Reportable Quantities. EPA regulations in 40 CFR Part 355 establish the list of extremely hazardous substances, threshold planning quantities, and facility notification responsibilities necessary for the development and implementation of state and local emergency response plans. The reportable quantities for extremely hazardous substances are set out in 40 CFR Part 355, Appendices A (alphabetical order) and B (by CAS number).

  4. CERCLA Release Reporting. The EPCRA notification of release requirements are in addition to the release reporting requirements imposed by CERCLA section 103 (42 U.S.C. ' 9603). Under CERCLA section 103(a), the person in charge of a vessel or facility from which a hazardous substance has been released in a quantity that equals or exceeds its reportable quantity must immediately notify the National Response Center of the release. The purpose of the CERCLA notification requirement is to inform the government of a release so that Federal personnel can evaluate the need for a Federal removal or remedial action and undertake any necessary action in a timely manner. Under section 104 of CERCLA, the Federal government may respond whenever there is a release or substantial threat of a release of a hazardous substance into the environment. Response activities are to be taken, to the extent practicable, in accordance with the National Oil and Hazardous Substances Pollution Contingency Plan (40 CFR Part 300).

    Releases of CERCLA hazardous substances are subject to the release reporting requirements that are codified at 40 CFR Part 302. The list of CERCLA hazardous substances and their reportable quantities is found at 40 CFR ' 302.4. The National Response Center telephone number for release reporting is (800) 424-8802.

    Note: Currently, only releases of those extremely hazardous substances that are also CERCLA hazardous substances are required to be reported to the National Response Center under CERCLA section 103. Discrepancies exist between the substances on the list of EPCRA extremely hazardous substances and those on the list of CERCLA hazardous substances. Moreover, the reportable quantity of the same substance may differ between lists. EPA has published a proposed rule to designate 226 non-CERCLA extremely hazardous substances as CERCLA hazardous substances (54 FR 3388 (1989). The purpose of the proposed rule is to eliminate potential confusion concerning the different EPCRA (notification to state and local officials only) and CERCLA (notification to the National Response Center in addition to notification to state and local officials) requirements. EPA has also published a proposed rule to adjust the reportable quantities for 225 substances on the EPCRA extremely hazardous substances list, which EPA has proposed for designation as CERCLA hazardous substances, and 19 substances that are CERCLA hazardous substances (54 FR 35988 (1989)).

  5. Comparison of EPCRA and CERCLA Release Reporting Requirements. Table 1 indicates the differences in reporting a release of a reportable quantity of a CERCLA hazardous substance or an EPCRA extremely hazardous substance.

    Note: A petroleum release that contains a reportable quantity of an extremely hazardous substance as a constituent is exempt under CERCLA but not under EPCRA section 304. The petroleum exclusion under CERCLA does not apply to EPCRA (52 FR 13378,13385 (1987)).

  6. Reporting Requirement

    Substance only on CERCLA List of Hazardous Substances
    (40 CFR ' 302.4)

    Substance only on EPCRA List of Extremely Hazardous Substances
    (40 CFR Part 355, Appx A & B)

    Substance on CERCLA and EPCRA Lists

    Notify State and Local Officials

    Yes

    Yes (unless release results in exposure only to persons solely within the boundaries of the facility)

    Yes

    Notify National Response Center

    Yes

    No

    Yes

    Does the petroleum exclusion apply?

    Yes

    No

    Yes -- CERCLA Report
    No -- EPCRA Report

  7. Notice Requirements. A facility shall immediately notify the community emergency coordinator for the local emergency planning committee of any area likely to be affected by the release and the state emergency response commission of any state likely to be affected by the release. If there is no local emergency planning committee, notification shall be provided to relevant local emergency response personnel.

    Emergency release notice requirements for a transportation-related release may be satisfied by providing the information indicated in subsection G. Notice Contents by telephone to the 911 operator, or in the absence of a 911 emergency telephone number, to the operator. A "transportation-related release" means a release during transportation, or storage incident to transportation if the stored substance is moving under active shipping papers and has not reached the ultimate consignee.

  8. Notice Contents. The emergency release notice shall include the following to the extent known at the time of notice and so long as no delay in notice or emergency response results:

    1. The chemical name or identity of any substance involved in the release.

    2. An indication of whether the substance is an extremely hazardous substance.

    3. An estimate of the quantity of any such substance that was released into the environment.

    4. The time and duration of the release.

    5. The medium or media into which the release occurred.

    6. Any known or anticipated acute or chronic health risks associated with the emergency and, where appropriate, advice regarding medical attention necessary for exposed individuals.

    7. 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).

    8. The names and telephone number of the person or persons to be contacted for further information.

  9. Following Emergency Notice. As soon as practicable after a release which requires notice under subsection F. Notice Requirements, a written follow-up emergency notice (or notices, as more information becomes available) setting forth and updating the information required in subsection G. Notice Contents and including additional information with respect to:

    1. actions taken to respond to and contain the release;

    2. any known or anticipated acute or chronic health risks associated with the release; and

    3. where appropriate, advice regarding medical attention necessary for exposed individuals.

  10. Transportation Exemption Not Applicable. EPCRA generally exempts from its requirements the transportation, including the storage incident to such transportation, of any substance or chemical subject to EPCRA. This transportation exemption does not apply to this section (30-60-30) or EPCRA's requirements for notification of the release of an extremely hazardous substance (EPCRA ' 304; 42 U.S.C. ' 11004).

    Refer to subsection F. Notice Requirements for requirements pertaining to transportation-related releases.

  11. Exempted Releases. The notification requirements of this section (30-60-30) do not apply to:

    1. Any release which results in exposure to persons solely within the boundaries of the facility (note: CERCLA does not contain a similar exemption);

    2. Any release which is a "Federally permitted release" as defined in section 101 (10) of CERCLA (42 U.S.C. ' 9601 (10));

    3. Any release that is continuous and stable in quantity and rate under the definitions in 40 CFR ' 302.8(b).* Exemption from notification under this subsection does not include exemption from:

      1. Initial telephone or written notifications of a continuous release as defined in 40 CFR ' 302.8(d) and (e);

      2. Notification of a "statistically significant increase," defined in 40 CFR ' 302.8(b) as any increase above the upper bound of the reported normal range, which is to be submitted to the community emergency coordinator for the local emergency planning committee for any area likely to be affected by the release and to the State emergency response commission of any State likely to be affected by the release;

      3. Notification of a "new release", defined in 40 CFR ' 302.8(g)(1) as any change in the composition or source(s) of the release; or

      4. Notification of a change in the normal range of the release as required under 40 CFR ' 302.8(g)(2).

      * The referenced definitions that apply to the notification of a continuous release state: "A continuous release is a release that occurs without interruption or abatement or that is routine, anticipated, and intermittent and incidental to normal operations or treatment processes.... A routine release is a release that occurs during normal operating procedures or processes.... A release that is stable in quantity and rate is a release that is predictable and regular in amount and rate of emission." (40 CFR ' 302.8(b)).

      ** "The normal range of a release is all releases (in pounds or kilograms) of a hazardous substance reported or occurring over any 24-hour period under normal operating conditions during the preceding year. Only releases that are both continuous and stable in quantity and rate may be included in the normal range." (40 CFR ' 302.8(b)).

    4. Any release of a pesticide product exempt from CERCLA section 103(a) (42 U.S.C. ' 9603(a)) reporting under CERCLA section 103(e) (42 U.S.C. ' 9603(e)) (CERCLA exempts from its notification requirements the application of a pesticide product registered under FIFRA or the handling and storage of such a pesticide product by an agricultural producer);

    5. Any release not meeting the definition of release under section 101 (22) of CERCLA (42 U.S.C. ' 9601(22)), and therefore exempt from CERCLA section 103(a) reporting (42 U.S.C. ' 9603(a)) (e.g., engine exhaust emissions, certain nuclear material releases, the normal application of fertilizer); and

    6. Any radionuclide release which occurs:

      1. naturally in soil from land holdings such as parks, golf courses, or other large tracts of land;

      2. naturally from the disturbance of land for purposes other than mining, such as for agricultural or construction activities;

      3. from the dumping of coal and coal ash at utility and industrial facilities with coal-fired boilers; and

      4. from coal and coal ash piles at utility and industrial facilities with coal-fired boilers.

30-60-40 -- Material Safety Data Sheet Reporting (EPCRA 311; 42 U.S.C. 11021)

  1. Basic Requirement. A material safety data sheet (MSDS) or a list of hazardous chemicals shall be provided to the local emergency planning committee, the State emergency planning commission, and the fire department with jurisdiction over the facility for each hazardous chemical present at the facility according to the minimum threshold schedule provided in 40 CFR ' 370.20(b) (see subsection D. Minimum Thresholds for Reporting). An MSDS must include such information as the hazardous chemical's common and chemical names, physical and chemical characteristics, physical and health hazards, primary routes of entry, exposure limits, possible carcinogenic effects, safe handling and use precautions, control measures, and emergency and first aid procedures. (29 CFR ' 1910.1200(g)(2)). EPA regulations governing MSDS reporting are contained in 40 CFR Part 370.

  2. Note: Requirements for the reporting of mixtures is contained in section 30-60-60.

  3. Applicability. The requirement in section 311 of EPCRA to submit a MSDS or list of hazardous chemicals applies to each facility that is required to prepare or have available a MSDS for a hazardous chemical under the Occupational Safety and Health Act of 1970 (29 U.S.C. '' 651 et seq.) and regulations promulgated under that Act (see 29 CFR ' 1910.1200(g)). The Act requires a facility to have a MSDS for each hazardous chemical it uses, produces, or imports (29 CFR ' 1910.1200(g)(1)).

  4. Alternative Reporting. In lieu of the submission of an MSDS for each hazardous chemical, the following may be submitted:

    1. A list of the hazardous chemicals for which an MSDS is required, grouped by hazard category as defined by 40 CFR ' 370.2 (e.g., "immediate (acute) health hazard" or "delayed (chronic) health hazard");

    2. The chemical or common name of each hazardous chemical as provided on the MSDS; and

    3. Except for reporting of mixtures under 40 CFR ' 370.28(a)(2) (see section 30-60-60, subsection A.2.), any hazardous component of each hazardous chemical as provided on the MSDS.

  5. Minimum Threshold Levels for MSDS Reporting. Except in response to certain requests for submission of an MSDS, an MSDS shall be submitted:

    1. For all hazardous chemicals present at the facility at any one time in amounts equal to or greater than 10,000 pounds (or 4,540 kgs.); and

    2. For all extremely hazardous substances present at the facility in an amount greater than or equal to 500 pounds (or 227 kgs. approximately 55 gallons) or the TPQ, whichever is lower.

    The minimum threshold for reporting in response to a request for submission of an MSDS by a local emergency planning committee (see subsection H. Submission of MSDS Upon Committee Request) shall be zero.

  6. Definition of "Hazardous Chemical". The term "hazardous chemical", as defined in 29 CFR ' 1910.1200(c), means any chemical which is a physical hazard or a health hazard, except that such term does not include the following substances:

    1. Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration;

    2. Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use;

    3. Any substance to the extent it is used for personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public;

    4. Any substance to the extent it is used in a research laboratory or a hospital or other medical facility under the direct supervision of a technically qualified individual; and

    5. Any substance to the extent it is used in routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.

    Note: The definition of "hazardous chemical" in this section (30-60-40) is broader than "hazardous substance"' under CERCLA or "extremely hazardous substance"' under EPCRA (see sections 30-60-20, 30-60-30).

  7. Reporting Period. Executive Order 12856 provides that to the extent that a facility is required to maintain MSDSs under any provisions of law or Executive order, information required under section 311 of EPCRA shall be submitted no later than August 3, 1994. Thereafter, a facility shall submit an MSDS for a hazardous chemical or a list within three months after a hazardous chemical requiring an MSDS becomes present in an amount exceeding the threshold established in 40 CFR ' 370,.20(b) (see subsection D. Minimum Threshold Levels for Reporting).

  8. Supplemental Reporting. A revised MSDS shall be provided to the local emergency planning committee, the State emergency planning commission, and the fire department with jurisdiction over the facility within three months after discovery of significant new information concerning the hazardous chemical for which the MSDS was submitted.

  9. Submission of MSDS Upon Committee Request. A facility that has not submitted the MSDS for a hazardous chemical present at the facility shall submit the MSDS for any such hazardous chemical to the local emergency planning committee upon its request. The MSDS shall be submitted within 30 days of the receipt of such request. The minimum threshold for reporting in response to a request for submission of an MSDS by a local committee shall be zero.

  10. Public Request for MSDS Information. EPA regulations permit any person to obtain an MSDS with respect to a specific facility by submitting a written request to the local emergency planning committee. If the committee does not have the MSDS in its possession, the EPA regulations authorize the committee to request a submission of the MSDS from the owner or operator of the facility that is the subject of the request and make the sheet available to the requester.

  11. Withholding of Trade Secret Information. EPCRA section 322 (42 U.S.C. ' 11042) provides that any person may withhold from the submittal of an MSDS the specific chemical identity (including the chemical name and other specific identification) of a hazardous chemical when such information is a trade secret and the claim of trade secrecy is substantiated in accordance with EPA regulations. Withholding and disclosure of trade secret information is discussed in section 30-60-80.

30-60-50 -- Emergency and Hazardous Chemical Inventory Reporting (EPCRA 312; 42 U.S.C. 1022)

  1. Basic Requirement. A facility shall submit annually an Emergency and Hazardous Chemical Inventory Reporting Inventory Form (Tier I form) to the local emergency planning committee, the State emergency response commission, and the fire department with jurisdiction over the facility for hazardous chemicals present at the facility during the preceding calendar year that are above the minimum threshold levels established for those chemicals (see subsection D. Minimum Threshold Levels for Tier I or Tier II Form Reporting). The Tier I form provides aggregate information on the categories, amounts, and general location of the hazardous chemicals at the facility. EPA regulations governing annual inventory reporting are contained in 40 CFR Part 370.

    Note: Requirements for the reporting of mixtures is contained in section 30-60- 60.

  2. Alternative Reporting. With respect to any specific hazardous chemical at the facility, a Tier II form (see subsection G. Contents of Tier II Form) may be submitted in lieu of the Tier I information.

  3. Applicability of the Requirement. The requirement in section 312 of EPCRA to submit an emergency and hazardous chemical inventory form applies to each facility that is required to prepare or have available an MSDS for a hazardous chemical under OSHA and regulations promulgated under that Act. OSHA requires facilities that use, distribute, produce, or import chemicals to have a material safety data sheet for each hazardous chemical which they use (29 CFR ' 1910.1200(g)(1)).

  4. Minimum Threshold Levels for Tier I or Tier II Form Reporting. Except in response to certain requests for submission of a Tier II form, a Tier I (or Tier II) form shall be submitted covering:

    1. All hazardous chemicals present at the facility at any one time during the preceding calendar year in amounts equal to or greater than 10,000 pounds (or 4,540 kgs.); and

    2. Extremely hazardous substances present at the facility in an amount greater than or equal to 500 pounds (or 227 kgs.--approximately 55 gallons) or the TPQ, whichever is lower.

    The minimum threshold for reporting in response to a request for submission of a Tier II form by a State emergency response commission, local emergency planning committee, or fire department having jurisdiction over the facility (see subsection H. Submission of Tier II Information to State Commissions, Local Committees, or Fire Departments) shall be zero.

  5. Annual Reporting Period. An inventory form containing Tier I (or Tier II) information on hazardous chemicals present at the facility during the preceding calendar year above the threshold levels established in 40 CFR ' 370.20(b) (see subsection D. Minimum Threshold Levels for Tier I or Tier II Form Reporting shall be submitted on or before March 1 of each year. Executive Order 12856 provides that the first year of compliance with this reporting requirement for federal agencies shall be no later than the 1994 calendar year, with reports due on or before March 1, 1995.

  6. Content of Tier I Form. The Tier I Emergency and Hazardous Chemical Inventory Form (with instructions) is set out in 40 CFR ' 370.40(b). In lieu of the form, a facility may submit a State or local form that contains identical content. The Tier I Inventory Form requires a facility to provide the following information in aggregate terms for hazardous chemicals in categories of health and physical hazards as set forth under OSHA and regulations promulgated under that Act.

    1. An estimate (in ranges) of the maximum amount of hazardous chemicals in each category present at the facility at any time during the preceding calendar year.

    2. An estimate (in ranges) of the average daily amount of hazardous chemicals in each category present at the facility during the preceding calendar year.

    3. The general location of hazardous chemicals in each category.

    The EPA regulations consolidate 23 hazard categories defined in the OSHA Hazard Communication Standard, 29 CFR ' 1910.1200, into two health hazard and three physical hazard categories. The five Tier I Form hazard categories are: fire hazards; sudden release of pressure hazards; reactivity hazards; immediate (acute) health hazards; and delayed (chronic) health hazards.

  7. Contents of Tier II Form. Tier II Emergency and Hazardous Chemical Inventory Forms (with instructions) is set out in 40 CFR ' 370.41 (b). In lieu of the form contained in the EPA regulations, a facility may submit a state or local form that contains identical content. The Tier II Inventory Form requires the following additional information for each hazardous chemical present at the facility:

    1. The chemical name or the common name of the chemical as provided on the MSDS.

    2. An estimate (in ranges) of the maximum amount of the hazardous chemical present at the facility at any time during the preceding calendar year.

    3. An estimate (in ranges) of the average daily amount of the hazardous chemical present at the facility during the preceding calendar year.

    4. A brief description of the manner of storage of the hazardous chemical.

    5. The location at the facility of the hazardous chemical.

    6. An indication of whether the facility elects to withhold information regarding the location of the hazardous chemical from disclosure to the public under 42 U.S.C. ' 11044 (see subsection L. Withholding Certain Information From Public Disclosure.

  8. Submission of Tier II information to State Commissions, Local Committees, or Fire Departments. Upon request by a State emergency response commission, a local emergency planning committee, or a fire department with jurisdiction over the facility, a facility shall provide Tier II information to the person making the request. Any such request shall be with respect to a specific facility. The Tier II Form shall be submitted within 30 days of the receipt of each request. The minimum threshold for reporting in response to a request for submission of a Tier II form by a State commission, local committee, or fire department shall be zero.

  9. Availability of Tier II Information to Other State and Local Officials. A State or local official acting in his or her official capacity may have access to Tier II information by submitting a request to the State emergency response commission or the local emergency planning committee. Upon receipt of a request for Tier II information, the State commission or local committee is authorized by EPA regulations to request the facility for the Tier II information and make available such information to the official.

  10. Availability of Tier II Information to General Public. Any person may request Tier II information with respect to a specific facility by submitting a written request to the State commission or local committee in accordance with EPA requirements in 40 CFR ' 370.30(b). If the committee or commission does not have the Tier II information in its possession, EPA regulations authorize it to request a submission of the Tier II form from the facility that is the subject of the request, provided that the request is limited to hazardous chemicals stored at the facility in an amount in excess of 10,000 pounds. If the request is for Tier II information on chemicals present at a facility in an amount less than 10,000 pounds, the requestor must include a general statement of need in the request. The location of any chemical shall be withheld by the State commission or local committee upon request of the facility (see subsection L. Withholding Certain Information From Public Disclosure).

    EPCRA requires a State commission or local committee to respond to a request for Tier II information no later than 45 days after the date of receipt of the request.

  11. Fire Department Inspection. A facility that has submitted an inventory form shall allow on-site inspection by the fire department having jurisdiction over the facility upon request of the department, and shall provide to the department specific location information on hazardous chemicals at the facility.

  12. Withholding Certain Information From Public Disclosure.

    1. Physical Location of Hazardous Chemical. All information obtained from a facility in response to a public request to a State commission or local committee for a Tier II form must be made available to the person submitting the request, provided, upon request of the facility, the commission or committee shall withhold from disclosure the location of any specific chemical identified in the Tier II form.

    2. Trade Secret lnformation. EPCRA section 322 (42 U.S.C. ' 11042) provides that any person may withhold from a submittal of an emergency and hazardous chemical inventory reporting form the specific chemical identity (including the chemical name and other specific identification) of a hazardous chemical when such information is a trade secret and the claim of trade secrecy is substantiated in accordance with EPA regulations. Withholding and disclosure of trade secret information is discussed in section 30-60-80.

30-60-60 -- Treatment of Mixtures in MSDS and Inventory Reporting

  1. Basic Reporting. A facility may meet the MSDS reporting requirements of 40 CFR ' 370.21 (see 30-60-40) and the inventory reporting requirements of 40 CFR ' 370.25 (see 30-60-50) for a hazardous chemical that is a mixture of hazardous chemicals by:

    1. Providing the required information on each component in the mixture which is a hazardous chemical*; or

    2. Providing the required information on the mixture itself.

    * Note: If more than one mixture has the same component, only MSDS or listing on the inventory form for the component is necessary.

  2. Same Manner of Reporting. Where practicable, the reporting of mixtures by a facility shall be in the same manner for MSDS (see 30-60-40) and inventory (see 30-60-50) reporting.

  3. Calculation of the Quantity. If the reporting is on each component of the mixture which is a hazardous chemical, then the concentration of the hazardous chemical, in weight percent (greater than 1% or 0.1 % if carcinogenic) shall be multiplied by the mass (in pounds) of the mixture to determine the quantity of the hazardous chemical in the mixture. If the reporting is on the mixture itself, the total quantity of the mixture shall be reported.

  4. Aggregation of Extremely Hazardous Substances. To determine whether the reporting threshold for an extremely hazardous substance has been equaled or exceeded, the owner or operator of a facility shall aggregate the following:

    1. The quantity of the extremely hazardous substance present as a component in all mixtures at the facility, and

    2. All other quantities of the extremely hazardous substance present at the facility.

    If the aggregate quantity of an extremely hazardous substance equals or exceeds the reporting threshold, the substance shall be reported.

    If extremely hazardous substances are being reported and are components of a mixture at a facility, the owner or operator of a facility may report either:

    1. The mixture, as a whole, even if the total quantity of the mixture is below its reporting threshold; or

    2. The extremely hazardous substance component(s) of the mixture.

30-60-70 -- Toxic Chemical Release Inventory Reporting (EPCRA 313; 42 U.S.C. 11023)

  1. Basic Requirement. A facility that is subject to the EPCRA section 313 reporting requirement shall submit annually a Toxic Chemical Release Inventory Reporting Form (Form R) to EPA and to affected States and Indian tribes. The purpose of this reporting is to inform the general public and the communities surrounding covered facilities about releases of toxic chemicals, to assist research, and to aid in the development of regulations, guidelines, and standards.

    A completed Form R must be submitted for each toxic chemical manufactured, processed, or otherwise used at the facility in excess of the threshold quantity established for that chemical. The facility must report the activities and uses of the toxic chemical at the facility, quantity released to the environment (air, water, or land), maximum amount on-site during the calendar year, and amount contained in wastes transferred off-site. The facility must also provide certain treatment and pollution prevention data. Mandatory source reduction and recycling data reporting requirements were added to Form R after enactment of the Pollution Prevention Act of 1990 (42 U.S.C. '' 13101-13109). Reporting of source reduction and recycling data is discussed in chapter 30-80.

    Suppliers must also notify persons to whom they distribute mixtures or trade name products containing toxic chemicals that they contain such chemicals.

    EPA regulations governing annual toxic chemical release inventory reporting and supplier notification are contained in 40 CFR Part 372.

  2. Applicability of the Reporting Requirement. Section 313 of EPCRA requires that toxic chemical release inventory (TRI) reports be filed by facilities that meet all three of the following criteria during a calendar year:

    1. The facility has ten or more full-time employees;

    2. The facility is included in Standard Industrial Classification (SIC) Codes 20 through 39 (Note: Executive Order 12856 requires Federal facilities to comply with section 313 without regard to standard industrial classification); and

    3. The facility manufactured (including imported), processed, or otherwise used any listed toxic chemical in excess of the established threshold quantity of that chemical (see subsection D. Reporting Threshold).

    Executive Order 12856 provides that the head of each Federal agency shall comply with the provisions set forth in section 313 of EPCRA, all implementing regulations, and future amendments to these authorities, in light of applicable guidance as provided by EPA. The head of each Federal agency shall comply with these provisions without regard to the Standard Industrial Classification (SIC) delineations that apply to the Federal agency's facilities, and such reports shall be for all releases, transfers, and wastes at such Federal agency=s facility without regard to the SIC code of the activity leading to the release, transfer, or waste. All other existing statutory or regulatory limitations or exemptions on the application of EPCRA section 313 shall apply to the reporting requirements set forth in section 3-304(a) of the Order.

    40 CFR ' 372.38(f) addresses reporting where two or more organizations operate establishments within a single facility on leased property without common ownership or control.

    Note: The TRI reporting requirement is different from the reporting requirements in the preceding sections, because a section 313 report is not triggered by the release of a certain amount of a toxic chemical. The criteria for reporting under section 313 is based on the amount of a toxic chemical that a facility uses in a year. If a facility uses more than a certain amount of a listed toxic chemical in a year, all releases of that chemical must be reported (unless the use or release is exempted).

  3. Information Required To Be Reported.

    1. Toxic Chemical Release Inventory. Information elements that are reportable on EPA Form R or equivalent magnetic media format (see subsection I. Form R Availability) include the following:

      1. Name and CAS number (if applicable) of the chemical reported. The toxic chemicals that are subject to EPCRA section 313 reporting are listed in 40 CFR ' 372.65. The EPA regulations contain three listings of the toxic chemicals: (a) an alphabetical order listing of those chemicals that have an associated Chemical Abstracts Service (CAS) Registry number; (b) a CAS number order list of the same chemicals; and (c) an alphabetical listing of the chemical categories for which reporting is required.

      2. An indication of the activities and uses of the chemical at the facility.

      3. An indication of the maximum amount of the chemical on site at any point in time during the reporting year.

      4. An estimate of total releases in pounds per year from the facility plus an indication of the basis of estimate for the following:

        1. Fugitive or non-point air emissions.

        2. Stack or point air emissions.

        3. Discharges to receiving streams or water bodies including an indication of the percent of releases due to stormwater (and the name(s) of receiving stream(s) or water body to which the chemical is released).

        4. Underground injection on site.

        5. Releases to land on site.

      5. Information on transfers of the chemical in wastes to off-site locations.

      6. Information relative to waste treatment.

      7. If the chemical identity is claimed trade secret, a generic name for the chemical.

      8. A mixture component identity if the chemical identity is not known.

      Within the AInstructions for Completing EPA Form R@, EPA warns that because a complete Form R consists of at least nine unique pages, any submission containing less than nine unique pages will not be considered a valid submission. A complete report for any listed toxic chemical that is not claimed as a trade secret consists of the following completed parts:

      Part I with an original signature on the certification statement (section 2); and Part 11 (section 8 is now mandatory).

      The instructions to Form R contain guidance for voluntary revision of a previously-submitted Form R.

      Note: Reporting requirements for a current calendar year may differ from previous years. Changes from the previous year are described in the instructions for Form R and should be carefully noted. Significant changes to the reporting requirements may occur because chemicals are added to the toxic chemical list for the current reporting year or have been delisted and are not covered for the reporting year. See the Form R Reporting Instructions for the names and CAS number of chemicals that have been delisted from, or added to, the toxic chemical list.

    2. Source Reduction and Recycling Data. Section 8 of EPA Form R asks for data related to source reduction and recycling. Reporting requirements for source reduction and recycling data are described in chapter 30-80.

    3. Facility Identifying Information. Certain identifying information about the facility must be reported on Form R, including facility name and address; main business activity; all facility identifiers (I.D.) (e.g., EPA RCRA I.D. Number, NPDES permit number; Underground Injection Well Code (UIC) I.D., TRI facility I.D.); name and telephone number for both a technical contact and a public contact; and latitude and longitude coordinates for the facility.

    4. Certification by Senior Management Official. A senior management official of the facility shall sign the Form R and make the following certification: "I hereby certify that I have reviewed the attached documents and, to the best of my knowledge and belief, the submitted information is true and complete and that amounts and values in this report are accurate based upon reasonable estimates using data available to the preparer of the report."

  4. Reporting Threshold. 40 CFR ' 372.25 contains threshold amounts for reporting chemicals. If more than 25,000 pounds of a listed toxic chemical is manufactured (including imported) or processed at a facility in a calendar year, the chemical must be reported. If more than 10,000 pounds of a listed toxic chemical is not manufactured or processed but is otherwise used at a facility in a given calendar year, the chemical must be reported. When more than one threshold applies to an activity at a facility, the facility must report if it exceeds any applicable threshold and must report on all activities at the facility involving the chemical, unless exempted (see subsection F. Exemptions from Reporting).

    When a facility manufactures, processes, or otherwise uses more than one member of a chemical category listed in 40 CFR ' 372.65(c), the facility must report if it exceeds any applicable threshold for the total volume of all the members of the category involved in the applicable activity. Any such report must cover all activities at the facility involving members of the category.

    A facility may process or otherwise use a toxic chemical in a recycle/reuse operation. To determine whether the facility has processed or used more than an applicable threshold of the chemical, the facility shall count the amount of the chemical added to the recycle/reuse operation during the calendar year. In particular, if the facility starts up such an operation during a calendar year, or in the event that the contents of the whole recycle/reuse operation are replaced in a calendar year, the facility shall also count the amount of the chemical replaced into the system at these times.

    If a toxic chemical is listed in 40 CFR 372.65 with the notation that only persons who manufacture the chemical, or manufacture it by a certain method, are required to report, a facility that solely processes or uses such a chemical is not required to report for that chemical. Only a facility that manufactures that chemical in excess of the threshold applicable to such manufacture is required to report. In completing the reporting form, the manufacturing facility is only required to account for the quantity of the chemical so manufactured and releases associated with such manufacturing, but not releases associated with subsequent processing or use of the chemical at that facility.

  5. Toxic Chemical Components of a Mixture or Trade Name Product. A report is required on a toxic chemical that is known to be present as a component of a mixture or trade name product which is received from another person, if that chemical is imported, processed, or otherwise used by the receiving facility in excess of an applicable threshold quantity as part of that mixture or trade name product. For purposes of EPA regulations, knowledge that a toxic chemical is present as a component of a mixture or trade name product exists if the operator of the facility:

    • Knows or has been told the chemical identity or Chemical Abstracts Service Registry Number of the chemical and the identity or Number corresponds to an identity or Number in 40 CFR ' 372.65, or

    • Has been told by the supplier of the mixture or trade name product that the mixture or trade name product contains a toxic chemical subject to EPCRA section 313.

    Guidance in determining whether a toxic chemical which is a component of a mixture or trade name product has been imported, processed, or otherwise used in excess of an applicable threshold at the facility can be found at 40 CFR ' 372.30(b)(3).

  6. Exemptions from Reporting.

    1. Laboratory Activities. Toxic chemicals manufactured, processed, or used in a laboratory at a covered facility under the supervision of a technically qualified individual as defined in 40 CFR ' 720.3(ee)* do not have to be considered in determining whether a threshold has been met unless the laboratory is engaged in:

      1. Manufacture, processing, or use of toxic chemicals in pilot plant­scale operations; or

      2. Activities conducted outside the laboratory.

      * 40 CFR ' 720.3(ee) defines Atechnically qualified individual" as "a person or persons (1) who, because of education, training, or experience, or a combination of these factors, is capable of understanding the health and environmental risks associated with the chemical substance which is used under his or her supervision; (2) who is responsible for enforcing appropriate methods of conducting scientific experimentation, analysis, or chemical research to minimize such risks; and (3) who is responsible for the safety assessments and clearances related to the procurement, storage, use, and disposal of the chemical substance as may be appropriate or required within the scope of conducting a research and development activity."

    2. Other Uses. If a toxic chemical is used at a covered facility for one of the following purposes, the facility is not required to consider the quantity of the toxic chemical used for such purpose when determining whether an applicable threshold has been met or determining the amount of releases to be reported:

      1. Use as a structural component of the facility;

      2. Use of products for routine janitorial or facility grounds maintenance (e.g., use of janitorial cleaning supplies, fertilizers, and pesticides similar in type or concentration to consumer products);

      3. 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;

      4. Use of products containing toxic chemicals for the purpose of maintaining motor vehicles operated by the facility;

      5. 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.

      Note: If the toxic chemical is also manufactured (including imported), processed, or otherwise used at the covered facility other than as described in this subsection, in excess of an applicable threshold quantity, the facility is required to report under 40 CFR ' 372.30.

    3. De Minimis Concentrations of a Toxic Chemical in a Mixture. A facility is not required to consider the quantity of a toxic chemical present in a mixture of chemicals when determining whether an applicable threshold has been met or determining the amount of release to be reported if the toxic chemical is in a concentration in the mixture which is:

      1. Below 1 percent of the mixture; or

      2. Below 0.1 percent of the mixture in the case of a toxic chemical which is a carcinogen as defined in 29 CFR ' 1910.1200(d)(4).

      This exemption applies whether the facility received the mixture from another person or the facility 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.

      Note: 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, the facility is required to submit a Form R.

    4. Articles. The quantity of a toxic chemical present in an article at a covered facility need not be considered when determining whether an applicable threshold has been met or determining the amount of release to be reported. "Article" means a manufactured item which:

      1. Is formed to a specific shape or design during manufacture;

      2. Has end-use functions dependent in whole or in part upon its shape or design during end-use; and

      3. Does not release a toxic chemical under normal conditions of processing or use of that item at the facility or establishments.

      This exemption applies whether the facility received the article from another person or the facility produced the article. However, this exemption applies only to the quantity of the toxic chemical present in the article. If the toxic chemical is manufactured (including imported), processed, or otherwise used at the covered facility other than as part of the article, in excess of an applicable threshold quantity, the facility is required to submit a Form R. If a release* of a toxic chemical occurs as a result of the processing or use of an item at the facility, that item does not meet the definition of "article".

      * "Release" means "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles) of any toxic chemical." (40 CFR ' 372.3)

    5. Ownership of Leased Real Estate. EPA regulations provide that the owner of a covered facility "is not subject to TRI reporting if such owner's only interest in the facility is ownership of the real estate upon which the facility is operated." (40 CFR ' 372.38(e)). This exemption applies to owners of facilities, such as industrial parks, all or part of which are leased to persons who operate establishments within SIC code 20 through 39 where the owner has no other business interest in the operation of the covered facility.

  7. Annual Reporting Period. Reports are due annually and contain data on releases during the previous calendar year. The report for any calendar year must be submitted on or before July 1 of the following year. Executive Order 12856 provides that the first year of compliance for Federal agencies with the. reporting requirements in EPCRA Section 313 shall be no later than for the 1994 calendar year, with reports due on or before July 1, 1995.

  8. Reporting for Establishments Within a Facility. For purposes of submitting a Form R, a "covered facility" may consist of more than one establishment. A separate Form R may be submitted for each establishment or for each group of establishments within the facility, provided that activities involving the toxic chemical at all the establishments within the covered facility are reported. If each establishment or group of establishments files separate reports, then separate reports must be submitted for all other chemicals subject to reporting at that facility. An establishment or group of establishments does not have to submit a report for a chemical that is not manufactured (including imported), processed, otherwise used, or released at that establishment or group of establishments.

  9. Form R Availability. Reports under section 313 of EPCRA are made on EPA Form R (EPA Form 9350-1), the Toxic Chemical Release Inventory (TRI) Reporting Form. Form R is submitted to EPA, affected States, and Indian tribes. A completed Form R must be submitted for each toxic chemical manufactured, processed, or otherwise used at each covered facility in excess of an applicable threshold.

    EPA encourages facilities to submit the required information to EPA by using magnetic media (computer disk or tape) in lieu of Form R. Instructions for submitting and using magnetic media may also be obtained from the address given in this subsection.

    The most current version of EPA Form R, including instructions for Form R, and related documents may be obtained from:

    Section 313 Document Distribution Center
    P.O. Box 12505
    Cincinnati, OH 45212
    EPA Form R and instructions also may be obtained by calling the EPCRA Information Hotline. Questions about completing Form R may be directed to the EPCRA Information Hotline at the following address or telephone numbers:

    Emergency Planning and Community Right-to-Know (EPCRA) Information Hotline
    Environmental Protection Agency
    401 M Street, S.W. (OS-120)
    Washington, D.C. 20460
    800-535-2002 or 703-920-9877
    from 8:30 a.m. to 7:30 p.m. Eastern Time (Mon-Fri, except Federal holidays.)

    The toll-free number is accessible throughout the United States, including Washington, D.C., and Alaska. EPA Regional Staff may also be of assistance.

    EPA has developed a package called the Toxic Chemical Release Inventory Reporting System. The diskette comes with complete instructions for use. It also provides prompts and messages to help report according to EPA instructions. For copies of the diskette, call the EPCRA Hotline.

  10. Where Reports Are To Be Sent. Reports are to be sent to EPA and to the State­designated Sec. 313 contact for the State in which the facility is located or the designated official of an Indian tribe if it is located on Indian land.

    Send reports to EPA by mail to:

    EPCRA Reporting Center
    P.O. Box 23779
    Washington, D.C. 20026-3779
    Attn: Toxic Chemical Release Inventory

    To submit a Form R via hand delivery or certified mail, the EPCRA Information Hotline may be called to obtain the street address of the EPCRA Reporting Center. The Form R instructions include appropriate State submission addresses. Note that "state" also includes the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the U.S.-Virgin Islands, the Northern Mariana Islands, and any other territory or possession over which the United States has jurisdiction. The Form R instructions also include information on sending copies to the applicable Indian tribe and submission of reports in magnetic media and computer-generated facsimile forms.

  11. Supplier Notification Requirement.

    1. Basic Requirement. EPA regulations provide that a facility that manufactures (including imports) or processes a toxic chemical and sells or otherwise distributes a mixture or trade name product containing the toxic chemical to a facility in Standard Industrial Classification Codes 20 through 39 that employs ten or more people, or to a person who in turn may sell or otherwise distribute such mixture or trade name product to such a facility, must provide a notification to each person to whom the mixture or trade name product is sold or otherwise distributed from the facility.

      Note: 40 CFR ' 372.45 states that only those facilities that are in Standard Industrial Classification (SIC) codes 20 through 39 (see 40 CFR ' 372.22(b)) must provide a supplier notification. However, Executive Order 12856 states that each Federal agency is to comply with the provisions set forth in section 313 of EPCRA and all implementing regulations without regard to the SIC delineations that apply to the Federal agency's facilities.

      40 CFR ' 372.45(h) addresses operation of separate establishments within a single facility by two organizations that do not have common ownership or control.

    2. Notification Contents. The notification shall be in writing and shall include:

      1. A statement that the mixture or trade name product contains a toxic chemical or chemicals subject to the reporting requirements of EPCRA section 313 and 40 CFR Part 372.

      2. The name of each toxic chemical, and the associated Chemical Abstracts Service registry number of each chemical if applicable, as set forth in 40 CFR ' 372.65.

      3. The percent by weight of each toxic chemical in the mixture or trade name product.

    3. Notification Procedure. The written notice shall be provided to each recipient of the mixture or trade name product with at least the first shipment of each mixture or trade name product in each calendar year, beginning with the chemical's applicable effective date (see 40 CFR ' 372.65 for effective dates).

      If an MSDS is required to be prepared and distributed for the mixture or trade name product in accordance with 29 CFR ' 1910.1200, the notification must be attached to or otherwise incorporated into the MSDS. When the notification is attached to the MSDS, the notice must contain clear instructions that the notifications must not be detached from the MSDS and that any copying and redistribution of the MSDS shall include copying and redistribution of the notice attached to copies of the MSDS subsequently redistributed.

      1. If a mixture or trade name product contains no toxic chemical in excess of the applicable de minimis concentration (see subsection F. Exemptions from Reporting).

      2. If a mixture or trade name product is one of the following:

        1. an "article" (see subsection F. Exemptions from Reporting);

        2. foods, drugs, cosmetics, alcoholic beverages, tobacco, or tobacco products packaged for distribution to the general public.

        3. any consumer product as the term is defined in the Consumer Product Safety Act (15 U.S.C. 1251 et seq.) packaged for distribution to the general public.

      Note: EPA regulations also state that a person is not subject to the supplier notification requirement to the extent the person does not know that the facility or establishment(s) is selling or otherwise distributing a toxic chemical to another person in a mixture or trade name product. However... a person has such knowledge if the person receives a notice... from a supplier of a mixture or trade name product and the person in turn sells or otherwise distributes that mixture or trade name product to another person." (40 CFR ' 372.45(g))

    4. Change in Mixture or Trade Name Product. If a facility changes a mixture or trade name product for which notification was previously provided by adding a toxic chemical, removing a toxic chemical, or changing the percent by weight of a toxic chemical in the mixture or trade name product, the facility shall provide each recipient of the changed mixture or trade name product a revised notification reflecting the change with the first shipment of the changed mixture or trade name product to the recipient.

      If a facility discovers:

      1. that a mixture or trade name product previously sold or otherwise distributed to another person during the calendar year contains one or more toxic chemicals, and

      2. that any notification provided to such other person in that calendar year either did not properly identify any of the toxic chemicals or did not accurately present the percent by weight of any of the toxic chemicals in the mixture or trade name product,

      3. the facility shall provide a new notification to the recipient within 30 days of the discovery and identify the prior shipments of the mixture or product to which the new notification applies.

    5. Trade Secret. If the specific identity of a toxic chemical in a mixture or trade name product is considered to be a trade secret under provisions of 29 CFR ' 1910.1200, the notice shall contain a generic chemical name that is descriptive of that toxic chemical.

      If the specific percent by weight composition of a toxic chemical in the mixture or trade name product is considered to be a trade secret under applicable state law or under the Restatement of Torts section 757, comment b, the notice must contain a statement that the chemical is present at a concentration that does not exceed a specified upper bound concentration value. For example, a mixture contains 12 percent of a toxic chemical. However, the supplier considers the specific concentration of the toxic chemical in the product to be a trade secret. The notice would indicate that the toxic chemical is present in the mixture in a concentration of no more than 15 percent by weight. The upper bound value chosen must be no larger than necessary to adequately protect the trade secret.

  12. Recordkeeping.

    1. Retention of Form R Materials and Documentation. Each facility subject to the reporting requirements of this chapter (30-60) must retain the following records for a period of 3 years from the date of the submission of a Form R:

      1. A copy of each Form R submitted by the facility;

      2. All supporting materials and documentation used to make the compliance determination that the facility is a covered facility;

      3. Documentation supporting a submitted Form R, including:

        1. Documentation supporting any determination that a claimed allowable exemption from reporting applies.

        2. Data supporting the determination of whether a threshold applies for each toxic chemical.

        3. Documentation supporting the calculations of the quantity of each toxic chemical released to the environment or transferred to an off-site location.

        4. Documentation supporting the use indications and quantity on site reporting for each toxic chemical, including dates of manufacturing, processing, or use.

        5. Documentation supporting the basis of estimate used in developing any release or off-site transfer estimates for each toxic chemical.

        6. Receipts or manifests associated with the transfer of each toxic chemical in waste to off-site locations.

        7. Documentation supporting reported waste treatment methods, estimates of treatment efficiencies, ranges of influent concentration to such treatment, the sequential nature of treatment steps, if applicable, and the actual operating data, if applicable, to support the waste treatment efficiency estimate for each toxic chemical.

    2. Retention of Supplier Notification Materials and Documentation. Each facility subject to the supplier notification requirement (see subsection K. Supplier Notification Requirement) must retain the following records for a period of 3 years from the date of the submission of a notification:

      1. A copy of each notice.

      2. All supporting materials and documentation used to make the compliance determination that the facility is a covered facility.

      3. All supporting materials and documentation used by the facility to determine whether a supplier notification is required.

      4. All supporting materials and documentation used in developing each required notice.

    3. Availability of Records. Records must be maintained at the facility to which the Form R report applies or from which a notification was provided. Such records must be readily available for purposes of inspection by EPA. According to the Form R instructions, in the event of a problem with data elements on a facility's Form R, EPA may request documentation that supports the information reported from the facility. EPA may conduct data quality reviews of past Form R submissions. An essential component of this process would be to review a facility=s records for accuracy and reliability. The Form R instructions include a list of records that a facility should maintain in addition to those that are required to be maintained.

30-60-80 -- Public Availability of Information; Withholding and Disclosure of Trade Secrets

  1. Availability of Information to Public. EPCRA section 324 (42 U.S.C. ' 11044) provides that each emergency response plan, MSDS, list of hazardous chemicals, inventory form, toxic chemical release form, and follow-up emergency notice shall be made available to the general public, subject to trade secret limitations, at locations designated by the Administrator of EPA, Governor, State emergency response commission, or local emergency planning committee. Each local emergency planning committee must annually publish a notice in local newspapers indicating where members of the public may review documents that have been submitted pursuant to EPCRA. EPA also maintains a national toxic chemical inventory, based on TRI reports, in a computer data base that is available to the public on a cost-reimbursable basis.

    The Administrator of EPA, in any case in which the identity of a toxic chemical is claimed as a trade secret, must identify the adverse health and environmental effects associated with the toxic chemical and assure that such information is included in the TRI computer database and is provided to any person requesting information about such toxic chemical. The appropriate Governor or state commission must identify the adverse health effects associated with a hazardous chemical or extremely hazardous substance, when its identity is claimed as a trade secret, and provide such health effects information to any person requesting information about the hazardous chemical or extremely hazardous substance.

    Section 5-508 of Executive Order 12856 also provides that the public shall be afforded ready access to all strategies, plans, and reports required to be prepared by Federal agencies under the order by the agency preparing the strategy, plan, or report (to the extent permitted by law). When the reports are submitted to EPA, EPA is to compile the strategies, plans, and reports and make them publicly available as well. Federal agencies are encouraged by the Executive Order to provide such strategies, plans, and reports to the State and local authorities where their facilities are located for an additional point of access to the public. Section 6-601 of Executive Order 12856 authorizes an agency to withhold certain information. (See 30-90)

  2. Trade Secret Procedures. EPCRA section 322 (42 U.S.C. ' 11042) provides that a claim of trade secrecy may be made for the specific chemical identity of an extremely hazardous substance, a hazardous chemical, or a toxic chemical. Detailed information on how to submit a trade secrecy claim for information submitted pursuant to an EPCRA reporting requirement is contained in 40 CFR Part 350. A trade secrecy claim may be submitted only to EPA and must be substantiated by providing specific answers to questions on an EPA form entitled "Substantiation to Accompany Claims of Trade Secrecy" (see 40 CFR ' 350.27). The submitter shall include with its EPCRA report both a sanitized and unsanitized trade secret substantiation form. The unsanitized version must contain all of the information claimed as trade secret or business confidential, properly marked in accordance with EPA regulations. The sanitized version is identical to the unsanitized version in all respects except that all of the information claimed as trade secret or business confidential is deleted, and a generic class or category to describe the trade secret chemical is included. This sanitized version is the one that is submitted to state or local authorities, as appropriate.

  3. Public Petition for Disclosure of Trade Secret Information. The public may request the disclosure of a chemical identity claimed as trade secret by submitting a written petition to EPCRA Reporting Center, Environmental Protection Agency, P.O. Box 3348, Merrifield, Va. 22116-3348. The required contents of the petition are described in 40 CFR ' 350.15. This public petition process covers only requests for public disclosure of a chemical identify claimed as trade secret. Requests for disclosure of other types of information must be submitted under EPA's Freedom of Information Act regulations at 40 CFR Part 2.

  4. Access by Federal Representatives or State Employees.

    1. Authorized Federal Representative Access. Under EPCRA section 322(f) (42 U.S. C. ' 11042(f)), EPA possesses the authority to disclose information to any authorized representative of the United States concerned with carrying out the requirements of EPCRA, even though the information might otherwise be entitled to trade secret or confidential treatment under EPA regulations. Such authority will be exercised by EPA only in accordance with 40 CFR ' 350.23.

    2. State Employee Access. Any State may request access to trade secrecy claims, substantiations, supplemental substantiations, and additional information submitted to EPA in accordance with 40 CFR ' 350.19. EPA must release this information, even if claimed confidential, to any State in response to its written request if the request is from the Governor of the State and the State agrees to safeguard the information with procedures equivalent to those which EPA uses to safeguard the information. The Governor may disclose such information only to State employees.

  5. Access by Health Professionals. EPCRA section 323 (42 U.S.C. ' 11043) allows health professionals to gain access to chemical identities, including those claimed as trade secret, in the following circumstances:

    • for non-emergency treatment and diagnosis of an exposed individual;

    • by health professionals employed by a local government to conduct preventive research studies and to render medical treatment; or

    • for emergency diagnosis and treatment.

    1. Non-emergency Access. In all circumstances but the medical emergency, the health professional must submit a written request and a statement of need, as well as a confidentiality agreement, to the facility holding the trade secret. The statement of need verifies that the health professional will be using the trade secret information only for the needs permitted in the statute, and the confidentiality agreement ensures that the health professional will not make any unauthorized disclosures of the trade secret. The required contents of the written request for access, including a certification signed by the health professional stating that the information contained in the statement of need is true, and the confidentiality statement are contained in 40 CFR ' 350.40. Following receipt of a written request, the facility to which such request is made shall provide the requested information to the health professional promptly.

    2. Emergency Access. In the event of medical emergency,* a facility which is subject to the EPCRA reporting requirements must provide a copy of a MSDS, an inventory form, or a toxic chemical release form, including the specific chemical identity, if known, of a hazardous chemical, extremely hazardous substance, or a toxic chemical, to any treating physician or nurse who requests such information. The treating physician or nurse must have first determined that:

      1. A medical emergency exists as to the individual or individuals being diagnosed or treated;

      2. The specific chemical identity of the chemical concerned is necessary for or will assist in emergency or first-aid diagnosis or treatment; and

      3. The individual or individuals being diagnosed or treated have been exposed to the chemical concerned.

      The specific chemical identity must be provided to the requesting treating physician or nurse immediately following the request, without requiring a written statement of need or a confidentiality agreement in advance. A written statement of need and confidentiality agreement may be required from the treating physician or nurse as soon as circumstances permit. The required contents of the statement of need and confidentiality agreement are specified in 40 CFR ' 350.40.

      * "Medical emergency" means "any unforeseen condition which a health professional would judge to require urgent and unscheduled medical attention. Such a condition is one which results in sudden and/or serious symptom(s) constituting a threat to a person's physical or psychological well-being and which requires immediate medical attention to prevent possible deterioration, disability, or death." (40 CFR ' 350.40(a)).

30-60-90 -- Compliance

  1. Internal Reviews. OPDIVs/STAFFDIVs shall conduct internal reviews and audits and take such other steps as may be necessary to monitor compliance with the requirements of this chapter (30-60) and Executive Order 12856. Compliance with EPCRA means compliance with the same substantive, procedural, and other statutory and regulatory requirements that would apply to a private person.

  2. Annual Progress Report. The Secretary will submit annual progress reports to the EPA Administrator beginning on October 1, 1995, regarding the progress that has been made in complying with all aspects of Executive Order 12856. This report and OPDIV/STAFFDIV responsibilities are described in chapter 30- 09.

  3. Technical Assistance from EPA. OPDIVs/STAFFDIVs are encouraged to request technical advice and assistance from EPA in order to foster full compliance with Executive Order 12856 and this chapter (30-60).

  4. EPA Monitoring. Executive Order 12856 provides that the Administrator of EPA, in consultation with the Secretary, may conduct such reviews and inspections as may be necessary to monitor compliance with the agency=s EPCRA responsibilities contained in sections 30-60-20 through 30-60-70 of this chapter. OPDIVs/STAFFDIVs are to cooperate fully with the efforts of the Administrator to ensure compliance with Executive Order 12856. Should the Administrator notify an OPDIV/STAFFDIV that it is not in compliance with an applicable provision of Executive Order 12856, the OPDIV/STAFFDIV shall achieve compliance as promptly as is practicable.

  5. State and Local Right-to-Know Requirements. OPDIVs/STAFFDIVs are encouraged to comply with all state and local right-to-know requirements to the extent that compliance with such laws and requirements is not otherwise already mandated.

  6. Prior Agreements for Application of EPCRA. The compliance dates for application of EPCRA set forth in Executive Order 12856 are not intended to delay implementation of earlier timetables already agreed to by an OPDIV/STAFFDIV and are inapplicable to the extent they interfere with those timetables.

30-60-100 -- Civil and Criminal Penalties

EPCRA section 325 (42 U.S.C. ' 11045) establishes administrative, civil, and criminal penalties for violation of the Act. Table 2, following, indicates penalties that apply for specific violations. Certain section 325 penalties do not apply to government entities. Moreover, Executive Order 12856 does not make the provisions of section 325 applicable to any Federal agency or facility, except to the extent that such Federal agency or facility would independently be subject to such provision.

Requirement

Administrative Penalty

Civil Penalty

Criminal Penalty

Emergency Planning
(42 U.S.C. 11002(c); 11003(d))

 

$25,000 per day

 

Emergency Release Notification
(42 U.S.C. 11004)

$25,000 per day

Second violation: $75,000 per day

$25,000 per day

Second violation: $75,000 per day

$25,000 or two (2) years imprisonment or both

Second conviction: $50,000 or five (5) years imprisonment or both

MSDS Reporting
(42 U.S.C. 11021)1

$10,000 per day

$10,000 per day

 

Inventory Reporting
(42 U.S.C. 11022)1

$25,000 per day

$25,000 per day

 

TRI Reporting (42 U.S.C. 11023)1

$25,000 per day

$25,000 per day

 

Provision of Information to Health Professionals
(42 U.S.C. 11043(b))1

$10,000 per day

$10,000 per day

 

Failure to Substantiate Trade Secret Claim
(42 U.S.C. 11042(a)(2))

$10,000 per day

$10,000 per day

 

Frivolous Trade Secret Claim

$25,000 per claim

$25,000 per claim

 

Disclosure of Trade Secret Information
(42 U.S.C. 11042)

 

 

$20,000 or one year imprisonment or both

Last Revised: October 17, 2003