What can happen if the facility does not report?

Any SERC or LEPC may bring civil suit against an owner or operator of a facility for failure to provide Tier Two information or for failure to provide emergency planning information needed for regional emergency plans. Also, some states have state statutes that provide for penalties for noncompliance.

EPA ENFORCEMENT

The Environmental Protection Agency has published its penalty policy on EPCRA violations. [LINK http://es.epa.gov/oeca/osre/900613.html] These penalties can be quite steep, as much as $27,500 per day, per chemical, per violation. Each entity that is supposed to be provided with a Tier Two Report, List of Chemicals or MSDS, or Emergency Notification is considered a separate point of compliance. Be prompt and complete with all EPCRA reports. Some EPA Regions are vigorous enforcers of the EPCRA, and others, like EPA Region 9, have only recently established EPCRA 312 enforcement programs. Almost all EPA Regions have an EPCRA Section 304 enforcement program, and the penalties for EPCRA Section 304 and CERCLA 103 noncompliance are just as steep as those for Section 312 noncompliance.

The enforcement of EPCRA by EPA presents some unusual obstacles because the EPCRA information, i.e. Tier Two Reports, facility and regional emergency plans, the written follow-up notice, is not directly reported to EPA. Enforcement is both a political and a resource decision. Besides penalties, noncompliance can result in severe losses for firefighters and emergency responders, the business community, and the public, including loss of lives.

Citizen Suit:

Citizens have the right by federal law to bring a civil lawsuit against a company that refuses to come into compliance with EPCRA law. A citizen who lives, recreates, or travels near a facility that is out of compliance with EPCRA can send the facility a 60-day notice of intent to sue letter. The company then has 60 days to comply with the law. If the company does not come into compliance, the citizen can file a legal complaint in court and force the facility to comply and pay penalties.

EPA'S ROLE

The EPA is represented on a national committee named the National Response Team (NRT) The NRT is an information gathering body and does not actually "respond." The NRT has prepared documents about emergency response and emergency planning, sometimes referred to as the "orange books."

EPA has enforcement powers and oversight of the SERCs and LEPCs. http://www.epa.gov/epaoswer/hotline/contacts.htm is the web address that will indicate what the regional EPA contact numbers and addresses are--and allow a viewer to determine which EPA region the facility is in.

Reporting requirements in an emergency chemical release:

  • Call 911 ASAP
  • Call National Response Commission (NRC) ASAP 1-800-424-8802
  • File 30 day follow-up report on incident to NRC, LEPC, SERC

SECTION 313 (Toxic Release Inventory)

Section 313 of EPCRA is considered by many to be its most important. It is not really related much to emergency planning, but there is often confusion about this section of EPCRA and its requirements.

EPCRA Section 313 deals with tracking the use and releases to the environment of a short list of certain chemicals or substances that might pose a chronic threat to the environment and public health. The national inventory of information compiled annually from individual facility reports is the Toxic Release Inventory, or TRI.

The Form R Report is the building block of the TRI. A Form R describes the chemical, how it was used, disposed of, and the ultimate fate of that chemical. A facility will have to file a separate Form R each year for each TRI chemical that it uses in sufficient quantities.

The Form R Report is due on July 1st of the following calendar year.

The EPA has placed the TRI data on the Internet, but there is a delay of about a year in getting the data onto the website.

The TRI, using Form Rs, is the reporting mechanism for identifying facilities that release these TRI chemicals and helps them to reduce or eliminate the releases of these chemicals into the environment. The Toxic Release Inventory identifies what facilities are using these chemicals and what quantity of these chemicals are being released into the air, water, or land. Facilities using TRI chemicals are also required to prepare a Pollution Prevention Plan to reduce the usage or releases of these chemicals. This TRI information helps the EPA decide where to expend resources in preventing pollution.

Pollution prevention occurs when process changes are made at a facility so that the TRI chemicals are not used at all, or their usage and releases are greatly reduced.

The EPA Title III List of Lists identifies those chemicals (over 600) which trigger Form R reporting, the report called the Toxic Release Inventory or TRI, which has to do with the total annual use of certain chemicals and where they ultimately went. Did these chemicals go into the air, the sewer, or a landfill? A free booklet that includes TRI reporting forms and the list of chemicals that need to be reported for is available by contacting the EPCRA Hotline at 1-(800) 424-9346.

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

To have Form R (TRI) reporting requirements, a facility must have the equivalent of at least 10 full-time employees. A facility needs to manufacture or process at least 25,000 pounds, or "otherwise use" 10,000 pounds, of a single TRI chemical to trigger Form R reporting requirements.

If the TRI chemical is contained in the finished product, then the facility "manufactured or processed" the chemical. If the TRI chemical actually just gets emitted into the air, the facility "otherwise used" it. For example, paints may contain several TRI chemicals, like Toluene, Xylene and Methyl Ethyl Ketone. Since these paint solvents actually evaporate, these are chemicals that are "otherwise used" because they do not actually become part of the finished product. The SERC often provides free help to facilities filling out Form R Reports and to the public in understanding them. [SERC Database]

A facility may use pure TRI chemicals and/or several different chemical mixtures that have varying concentrations of these chemicals in them. A facility using these chemicals needs to look at the amounts of these tracked chemicals used in all its different chemical mixtures in a calendar year and add them all up. The weights of each used will need to be computed and added together to determine if the TRI reporting threshold has been reached.

Section 313 reports require data about the maximum amount of the chemical being reported that was on-site during the previous calendar year. A facility filing Form R Reports and Tier Two Reports should make sure that these figures match. In the event of a catastrophic release of one of these Form R chemicals, there is a section of the Form R report, Section 8.8, that requires computation and reporting of releases to the environment during a spill. If a facility has Form R reporting requirements and has had a chemical spill incident, it should make sure that this Form R information correlates with the amounts listed in the Written Follow-up Notice and reports relating to the incident.

Feel free to contact the EPCRA Hotline at (800) 424-9346 for assistance and advice involving anything related to EPCRA.

EHS Information is contained in a publication named the EPA Title III List of Lists, and is available at the EPCRA Hotline at (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

(EPCRA 313 Statutes)