EPCRA AND PLANNING, SITING, AND ZONING CONSIDERATIONS

When siting a business, it is in the best interests of the business to look at adjacent land uses. Will the business store hazardous chemicals that could affect adjacent areas in the event of a spill? Are the neighboring businesses storing large amounts of hazardous chemicals, and are these businesses in compliance with EPCRA? After all, typical commercial zoning practices tend to cluster businesses and facilities together. A catastrophic chemical spill at another business could impact an adjacent business and its physical plant, disrupting its operations, perhaps destroying the business. It is not uncommon for a business to have enough hazardous chemicals stored on-site to have serious impacts on adjacent businesses and homes in the event of a catastrophic event involving hazardous chemicals, and insufficient insurance coverage to pay for the costs of a cleanup and medical expenses. Many businesses will be bankrupted by such a catastrophic event, leaving other businesses and homeowners to pay for the damage. Even a slow leak of hazardous chemicals can migrate off-site from a facility and well up under adjacent businesses, affecting the indoor air quality and the workers of the adjacent businesses. So EPCRA compliance information can be useful for planning a prospective business siting. Another factor to look at is whether the local fire department or emergency responders actually have implemented EPCRA in the area the business is contemplating its siting. (More information about EPCRA and how to determine overall EPCRA implementation follows.)

When planning to site or expand a facility, a facility operator or owner should also consider designing the facility and its operations to store the least amount of hazardous substances (chemicals) on-site as possible without disrupting day to day operations. These considerations can result in keeping the facility below the threshold of EPCRA reporting requirements. It also gets the business off to a good start by immediately lowering potential liabilities and even many costs, such as insurance. In the planning phase of a business, it may be possible to look for less toxic chemicals and processes. There are Pollution Prevention programs at EPA and at state and local environmental regulatory agencies that often provide no-cost or low cost help in these types of activities. Many businesses find they could have saved money by investigating these types of opportunities before building the facility in the first place, but once a facility is fully built, the cost of switching out chemical processes may be more prohibitive.

FACILITY DECISIONS TO LIMIT OFF-SITE CONSEQUENCES

Facility owners and operators can make decisions about what amounts of chemicals will be kept on-site and minimize those amounts. One option is having a "just-in-time" inventory, which means getting more frequent deliveries of small amounts of chemicals rather than having larger amounts in fewer deliveries. There is a tradeoff of sorts in making this decision, and communities want to weigh whether the increase in deliveries and traffic, therefore increased transportation accident risk, is worth asking a facility to change its operations. Generally speaking, the risks to the community from a chemical spill during the transportation of chemicals are larger than the risks to the community from a chemical spill at the facility. Most facilities have good containment and emergency response procedures if they comply with the different environmental regulations. But the trained staff at a facility and the containment designed to handle a chemical spill is not available at a truck delivering chemicals if there is a mishap along the delivery route. Vehicle accidents are a fact of life, and even the most responsible driver can collide with another vehicle, and not be at fault. Also, congested traffic conditions can make it difficult for emergency responders to respond.

Another option available to facility operators is to find less toxic chemicals as alternatives or chemicals that will not have "off-site consequences" when spilled. A classic example of this is the Chlorine used at municipal water wells. Chlorine is a very deadly chemical, and a spill or release of large amounts of Chlorine from a tank can be hazardous for many miles from the spill. Some cities have substituted other chemicals, Calcium Hypochlorite, or Calcium Nitrate Solutions, for the Chlorine. This type of substitution of less dangerous chemicals to reduce or eliminate risks to the community is exactly the type of reasoning that EPCRA asks of the public, facility operators, and planning agencies. However, EPCRA makes these choices strictly voluntary.

The Intel FAB 12 facility in Chandler, Arizona became the first facility in America to sign an XL Agreement. Project XL was created by President Clinton as part of his March 16, 1995, strategy to reinvent environmental regulation. Goals of the program are to achieve a cleaner environment at the lowest cost.

The FAB 12 facility made a conscious decision in designing the facility to limit the amounts of chemicals used and stored on-site to limit the area affected by a possible chemical spill to WITHIN the facility's boundaries.

The Intel FAB 12 XL facility also agreed to use a single, computer-based emergency plan that integrates all applicable emergency planning requirements an XL requirement. The computer-based facility emergency plan is maintained by Intel and the Chandler (local) Fire Department. Intel was required to implement a contingency plan for the Ocotillo (XL) Site under the Resource Conservation and Recovery Act, a hazardous materials management plan under the Emergency Planning and Community Right-to-Know Act, a spill prevention control and countermeasure plan under Section 311 of the Clean Water Act, and a Risk Management Plan under the general duty clause of Section 112r of the Clean Air Act.

The Intel FAB 12 XL facility is an example of how an electronic, integrated contingency plan like the BOLDER Planning Tool can be used effectively. The Intel FAB 12 facility has been a productive, profitable facility even at a time when its competitors were not.

For more details about the Intel XL Agreement and the Electronic, Integrated Contingency Plan, go to:
http://www.intel.com/intel/other/ehs/projectxl/final7.htm

More information about the Intel Project XL is at:
http://www.intel.com/intel/other/ehs/projectxl/

SPECIAL CHEMICAL REACTIONS SOFTWARE

When working at a facility, a facility making chemical process changes, or even a facility that is merely rearranging chemicals stored at the facility, the facility workers should be aware of, and consider the compatibility of, the various chemicals that may be stored next to each other at the facility. This is important because the inadvertent mixing of incompatible chemicals can cause fires, explosions, poison gases to form, and other unexpected outcomes. It is important to consider what possible mixing of chemicals might occur in the event of a spill, fire, or hazardous materials incident.

To help understand potential reactions where more than one chemical may be involved in a spill scenario, the Chemical Reactivity Worksheet has been developed. It can be found on the web at: http://response.restoration.noaa.gov/chemaids.html, or at http://response.restoration.noaa.gov/chemaids/react.html. This can be downloaded from the Internet. It includes a database of reactivity information for more than 4,000 common hazardous chemicals. The database includes information about the special hazards of each chemical and about whether a chemical reacts with air, water, or other materials. It also includes a way to virtually "mix" chemicals to find out what dangers could arise from accidental mixing. Alert the facility owner or operator of the web site, and of an incompatibilities it shows.

OFF-SITE CONSEQUENCE ANALYSIS

Facility owner and operators, if required to report under EPCRA, are required to provide specific information to the Local Emergency Planning Committee (LEPC), if it is requested, including the area or population likely to be affected by a release of chemicals from the facility. This "off-site consequence analysis" information, and other information, is used by the LEPC to develop a regional emergency response plan. Failure to provide this information when requested can result in a civil action in federal district court brought against the facility owner or operator by the SERC or LEPC, using EPCRA authority.

There are emergency planning computer programs that "model" just how far a cloud or plume of chemicals from a spill would travel but do not include "modeling" for fires. CAMEO and ALOHA are the names of two commonly used software programs for computer modeling. This plume or cloud modeling is called an "off-site consequence analysis." The computer "modeling" programs do have other limitations, and not all types of chemical spills and how far the chemicals would travel is known or easily obtainable. In order for the modeling software to work, there must be sufficient studies of the different chemicals to know how they might disperse into the air, and in many cases, the data is incomplete.

An example of this is Anhydrous (waterless) Hydrofluoric Acid and Aqueous (with water) Hydrofluoric Acid. Because there have been many tests on Anhydrous Hydrofluoric Acid, which is an extremely deadly and poisonous chemical, the modeling software is able to make predictions about the plume from a release of this chemical. But Aqueous Hydrofluoric Acid, which is just as deadly if ingested, contacted, or inhaled, is not yet studied or understood enough to be able to "model" a plume from a release or spill.

To work out the modeling for a chemical spill, there are many factors to be considered. The information about the weather conditions (which can change many times during a chemical spill), humidity, wind direction and wind speed, and other factors can be involved. The cloud of chemicals may be invisible, or white, or colored. It may be circular, or long and thin. The cloud or plume could move along the ground and accumulate in low-lying areas if it is heavier than air, or move quickly into the sky away from the ground if it is lighter than air.

Also, the total amount of the chemical involved, the properties of the chemical, the type of container or tank the chemical is in, the size of the hole that the chemical is spilling from, how fast the chemical is spilling, whether the chemical is under pressure, all of these are factors in determining how far away from a spill that there may be a hazard.

Of course, computer "models" are only an educated guess based on a variety of assumptions, and sometimes the "models" don't work out as expected. For example, when Anhydrous (waterless) Hydrofluoric Acid was tested in Nevada in the 1980's under a variety of release scenarios, none of predictions were correct. The scientists had predicted that the majority of the Anhydrous Hydrofluoric Acid, pressurized and heated, would fall into a catch basin after being released from just three feet off of the ground. But none of the Anhydrous Hydrofluoric Acid reached the ground. Instead, it all vaporized. Many chemicals, but by no means all of them, have been studied under various release scenarios to determine how far they would likely travel from the place they are spilled. There is no requirement that this information be known before a chemical or chemical mixture can be used in industrial processes. There is still no certain way to model the off-site consequences of a spill of Aqueous (with water) Hydrofluoric Acid, for example. Certainly, after the water evaporates from the Aqueous Hydrofluoric Acid solution, which is a function of temperature, weather conditions, relative humidity, time, etc., the spill would begin to behave like Anhydrous Hydrofluoric Acid. These off-site consequences are a function of wind speed, temperature, relative humidity, weather conditions, topographical differences (i.e. hills, valleys, tall buildings), spill conditions, etc. Communities will want to know that the "off-site consequence analysis" have been conducted for the various chemicals stored near or in their midst. When the accidental spill happens, it is too late to start determining this information. Preparation means preparing in advance!

The distance from a chemical spill or release where evacuations and shelter-in-place may be instituted depends on what information is known about the chemical, but this information may change as new studies and information about the chemical are made available. Often, the OSHA PEL (Occupational Safety Health Administration Permissible Exposure Limit) value for a chemical is the basis for determining what is the "safe" exposure limit for the public around a spill. The common emergency response practice is to allow exposure to a "safe" level of a chemical at 100 to 1,000 times less than the OSHA PEL.

But these OSHA PELs have been known to be wrong before. For example, Methylene Chloride once had an OSHA PEL of 500 parts per million (PPM), and now, over a period of ten years, that PEL has been revised downward to 25 PPM. 1,3 Butadiene once had an OSHA PEL of 1,000 PPM, and this has now been reduced to 1 PPM. Of course, earlier emergency planning and response scenarios (models) would have been based on numbers that were too high. The "safe" zone for evacuating and protecting people would have been incorrect. This is another reason why avoiding exposure to any chemical from a release or chemical spill is a good idea. There are obvious issues regarding potential liability.

It is not good practice to make the OSHA PEL the "acceptable" level of exposure to the public in the event of a chemical spill or release. Under OSHA, employers have a duty to protect the workers and must pay for medical treatment and attention if chemicals at the worksite injure employees. Generally, if a non-employee has been harmed by chemicals from a spill at a facility, there is not any automatic avenue for medical treatment and attention for the non-employee, hence EPCRA's requirements for that specific medical information at the time of the emergency and afterwards.

MORE HEALTH EFFECTS INFORMATION

For more information about health effects of chemicals, try the following government-sponsored websites:

healthfinder - Department of Health and Human Services' gateway to medical journals, news, databases, libraries, state agencies, educational sites, organizations, and support groups www.healthfinder.gov

National Institutes of Health - federal health information resources, clinical-trial databases, consumer health publications, and an index of health conditions being investigated by the government. /www.nih.gov

National Library of Medicine features MedLine, a free database of citations and abstracts from 3,900 medical journals.www.nlm.nih.gov

EPCRA OVERVIEW:
Emergency Planning

1. Section 301 - This section sets up the emergency planning infrastructure, the SERCs, LEPCs, and planning districts.

   Section 302 - This section creates a list of Extremely Hazardous Substances (EHS); Any facility with Extremely Hazardous Substances (EHS) present at or above a Reportable Quantity (RQ) has special notification requirements. Any facility with EHS above a specified Threshold Planning Quantities (TPQ) must develop a facility emergency plan.

   Section 303 - This section dictates that Local Emergency Planning Committees must organize collected facility emergency plans and related chemical inventory information and develop a regional (usually a county-wide) emergency response plan.

2. Emergency Notification (Section 304) Facilities must report accidental releases of EHS above specified reportable quantities to the National Response Center, the State Emergency Response Commissions and Local Emergency Planning Committees. Fire departments must also be notified. There is a requirement for a written follow-up notice.

3. Chemical Inventory Reports Sections 311 and 312) Facilities required to prepare or have available a Material Safety Data Sheet (MSDS) for hazardous chemicals must submit detailed information about the amounts, locations, and types of chemicals in inventory to the State Emergency Response Commission (SERC), the Local Emergency Planning Committee (LEPC), and the local fire department, by March 1st of the following calendar year. This requirement applies when enough (10,000 pounds) of the chemical is on site, unless the chemical is an Extremely Hazardous Substance (EHS), in which case as little as one pound may trigger reporting requirements [see EPA's List of Lists]. New facilities with reportable quantities of chemicals, or new chemicals at existing facilities above the reporting threshold, must be reported within 90 days to the SERC, LEPC, and fire department.

4. Toxic chemical release reporting (Section 313) Manufacturing facilities that release certain toxic chemicals must report the releases of these into the land, air, or water to the Environmental Protection Agency and to the State Emergency Response Commission (and/or state environmental agency). There is often confusion between this portion of EPCRA and the rest which deals more with emergency planning issues.

EHS Information is contained in a publication named the EPA Title III List of Lists, and is available at the EPCRA Hotline at 1-(800) 424-9346, or on the Internet. Anyone can call the Hotline -- it offers information to a broad audience of callers with diverse backgrounds and varying degrees of regulatory knowledge. To speak with Information Specialists about regulatory questions or to order documents, call: (800) 424-9346 or DC Area Local (703) 412-9810 or TDD (800) 553-7672 or TDD DC Area Local (703) 412-3323

COMMONLY USED TERMS AND ACRONYMS:

EHS - Extremely Hazardous Substances
EPCRA - the Emergency Planning and Community Right-To-Know Act (also EPCRTK)
HMMP - the Hazardous Materials Management Plan
LEPC - Local Emergency Planning Committee
RQ - Reportable Quantity
SARA TITLE III - Superfund Amendments Reauthorization Act
SERC - State Emergency Response Commission
Tier Two Report - Chemical Inventory Report
TPQ - Threshold Planning Quantity

How to comply with EPCRA:
WHO MUST REPORT:

EPCRA requires certain information to be reported by facility owners and operators. There are certain due dates for the reports. The EPCRA reporting requirements have been placed on facility owners and operators to prevent a regulatory loophole, and results in both entities, if they are separate entities, having reporting requirements. A facility's owner may not be its operator, but if these entities are separate, it is definitely in the facility owner's interests to be assured EPCRA compliance is achieved. A facility operator who has not complied with EPCRA may not be compliant with other environmental requirements. In fact, the EPA EPCRA penalty policy, used for determining and assessing penalties to facilities out of compliance with EPCRA, requires an examination of the overall environmental compliance of a facility when assessing the EPCRA penalty. EPCRA compliance helps assure preparation to prevent and mitigate chemical spills that can cause liability problems. A contaminated site is a financial liability that could have severe financial consequences for a facility owner. The facility owner or operator may designate or delegate another person to file the Tier Two Report, but the ultimate responsibility is with the owner and operator of a facility to comply.

BASIC EPCRA COMPLIANCE INFORMATION

The facility owner or facility operator will need to gather certain information first to assess whether there are facility reporting requirements under EPCRA. Also, an overview and basic understanding of EPCRA reporting requirements will be needed. An overview of the various reports required by EPCRA is presented first, then methods of assessing how EPCRA applies to the facility, which should illustrate what must be gathered for preparing the reports. EPCRA is an unusual law in that it "weds" OSHA law to an environmental statute, while providing certain specific information to several groups that have a stake in the information. A more detailed description of reporting requirements will follow the overview.

WHAT IS TIER ONE INFORMATION? [CHEMICAL STORAGE]

The EPCRA law requires Tier One Information from facilities with reportable quantities of hazardous chemicals. The Tier One is an inventory form that provides an estimate of the different types of hazardous chemicals (OSHA) in categories of health and physical hazards that are stored on-site during the preceding calendar year. Also, it provides the estimate of the maximum and average amounts of these categories of hazardous chemicals on-site, and their general locations. This Tier One information is now generally always provided on a Tier Two Report.

Actually, the federal EPCRA law only requires the Tier One information, and leaves it to the SERCs or LEPCs to request a Tier Two Report. But as a practical matter, EPCRA Tier Two reports are almost always the form submitted as SERCs and LEPCs have almost universally requested the Tier Two Reports instead of Tier One information.

Section 311 provides that once enough of a chemical is on-site in large enough amounts to trigger Section 312 reporting, a facility must provide a Material Safety Data Sheet, or MSDS, for each chemical required to be reported, or a list of chemicals to the fire department, LEPC, and SERC within a short amount of time, usually 60-90 days. [LEPC Database]

Generally, the Material Safety Data Sheets for a chemical will indicate if the chemical triggers EPCRA reporting requirements. Under OSHA, the Occupational Safety and Health Act, a facility's operators must use the Material Safety Data Sheets (MSDS) to train the employees on how to safely work with these chemicals.

Under Section 311, if a new factory opens, the public can inquire about its EPCRA information and won't have to wait until March 1st of the following year to find out if there are hazardous chemicals stored and used there. Likewise, if an incident occurs right after a facility opens, the firefighters and emergency responders will have the facility's chemical information in a timely manner and will be able to take the appropriate, mitigating action.

Though Section 311 requires no special forms, the facility owner or operator is responsible for obtaining the necessary, proper report form for Section 312. The Local Emergency Planning Committee and/or State Emergency Response Commission will serve as the key contacts. For Section 312 reports, the facility owner or operator will need one of two annual inventory forms, namely a Tier I form or a Tier II form. A facility must submit only one Tier I form annually. However, if the facility owner or operator submits a Tier Two form instead, entries must be made for each reportable chemical at the facility. Since each Tier II form provides room for only three chemicals, several copies may be needed.

Section 311 involves a on-time submission (with any necessary updates) naming the reportable hazardous chemicals present at the facility. Section 312 remains an annual responsibility, demanding more detailed information on facility chemical hazards and handling practices, including locations.

No special forms are needed under Section 311's requirements. Instead, the Material Safety Data Sheets (MSDSs) at the facility are the key resources. The facility owner/operator must simply compile all of the MSDSs for chemicals that are above the reporting thresholds and submit either copies of the MSDSs or a single list of these chemicals, grouped by hazard category, to the State Emergency Response Commission (SERC), Local Emergency Planning Committee (LEPC) and local fire department. However, if just a list is submitted, then when necessary, the LEPC can request substantiating MSDSs as supplemental information. The facility owner/operator has a 30 day period to comply with such a request. Both the list and the MSDSs should include the reportable hazardous chemicals present at the facility on the date of compliance. If at any time after this initial submission, a new, non-reported substance is obtained and exceeds the RQ, or a hazardous chemical in the facility inventory exceeds its RQ for the first time, then either an updated list or the relevant MSDS(s) must be sent to the SERC, LEPC and the local fire department within 90 days.

WHAT IS A TIER TWO REPORT?? [CHEMICAL STORAGE]

• Link to what the TIER TWO REPORT looks like.
• Link to an explanation of the TIER TWO REPORT.

The Tier Two form, when filled out correctly, provides much more information than just the Tier One. It provides the same information as a Tier One report, but also requires the chemical storage locations. It (Section 2a) names the facility and provides its address. The owner or operator's name, phone, and mailing address is also required (Section 2b). It has the names and 24-hour contact information for the emergency contacts at a facility (Section 2c). The year for which the report is filed is in Section 2d. (Some of the information on the Tier Two report can be declared unavailable to the public, like the locations of chemicals at the facility, and the contact names and telephone numbers. But the firefighters, the LEPC, and the SERC must be provided this information for emergency response purposes.) The Tier Two form also has the information about the SIC code and the Dun and Bradstreet number in Section 2a. The SIC, Standard Industrial Classification, code, tells about what types of business a facility is engaged in. This is already being replaced by NAICS code, which is based on the same concept, only more precise. The Dun and Bradstreet Number is useful in determining whether the facility is a stand-alone entity or part of another corporation or company. This Dun and Bradstreet Number can also be useful in determining who or what would be liable in the event of a catastrophic release of chemicals. Another use is to determine if the company has a history of environmental problems or superior environmental performance at other locations.

The Tier Two form, in Section 3, requests the CAS Chem name, which is the Chemical Abstract Service (CAS) registry number. Many chemicals have different names, and the CAS standardizes things for easier reference. To obtain a list of EPA regulated chemicals and the laws that apply call 1-(800) 424-9346 and ask for a free copy of the "List of Lists." A chemical listed on a Tier Two report could be the pure chemical, or a watered down version. It could be a mixture that includes the chemical. It could be a mixture of several chemicals. An MSDS for a chemical mixture can show the mixture has several chemical ingredients. One of these boxes, Pure or Mix, on the Tier Two form will always be checked for each chemical.

EHS Information is contained in a publication named the EPA Title III List of Lists, and is available at the EPCRA Hotline at 1-(800) 424-9346, or on the Internet. Anyone can call the Hotline -- it offers information to a broad audience of callers with diverse backgrounds and varying degrees of regulatory knowledge. To speak with Information Specialists about regulatory questions or to order documents, call: (800) 424-9346 or DC Area Local (703) 412-9810 or TDD (800) 553-7672 or TDD DC Area Local (703) 412-3323

The Tier Two form will list whether the chemical is a solid, liquid, or gas. One of these will always be checked for each chemical.

The Tier Two form will list whether the chemical is an Extremely Hazardous Substance (EHS). http://www.epa.gov/docs/epacfr40/chapt-I.info/subch-J/40P0355.pdf

The Tier Two form, in Section 4, will show what type of physical or health hazard the chemical presents. Immediate (acute) health hazard includes "highly toxic," "toxic," irritant," "sensitizer" (exposure makes a person more sensitive to chemicals so that other chemicals that wouldn't have harmed the person might now cause harm), "corrosive (corrodes, burns, or eats away at things, like battery acid eating away at metals or cloth)," and other hazardous chemicals that cause an adverse effect to a target organ (lungs, kidney, liver, skin) which usually occurs rapidly as a result of short term exposure. Delayed (chronic) health hazard includes "carcinogens" and other hazardous chemicals that cause an adverse health effect to a target organ and the effects of which occur as a result of long term exposure and is of long duration.

It will also show whether it is a fire hazard. Fire hazard includes "flammable," "combustible liquid," "pyrophoric (substance that burns spontaneously in the air at a temperature of 130 F or below)," and "oxidizer."

It will show if the chemical is in a pressurized tank that could explode or burst and send shrapnel everywhere--sudden release of pressure hazard. Sudden release of pressure hazard includes "explosive" and "compressed gas."

It will show if the chemical will combine with other chemicals (including water) and create heat, explosion or other new chemicals.--reactivity hazard? Reactive hazard includes "unstable reactive," "organic peroxide," and "water reactive."

The Tier Two form will show how much of the chemical is the maximum amount onsite under Section 5. It will also show the average amount onsite. It will show the number of days the chemical was present at the facility during the calendar year. Some states require facilities to report the actual amount, but the federal Tier Two form allows reporting by code. The higher the number, the higher the amount a chemical can range. An easy way to interpret the range is to think of the number shown as the number of zeros possible. For example, a range value of 2 is 100-999 pounds. Similarly, a range value of three would be 1,000 (three zeros) to 9,999.

The amount of a chemical on-site relates to whether there can be an off-site consequence of a spill.