EHS SPILL NOTIFICATION REQUIREMENTS
In the event of a large enough spill of an EHS at or from a facility, there are special requirements for emergency notification. In this instance, EPCRA is wedded to another federal environmental law, CERCLA, the Comprehensive Emergency Response, Compensation, and Liability Act of 1980. Section 103 of CERCLA requires special notification if there is a large spill of certain chemicals which are often EHS chemicals; so does Section 304 of EPCRA. But a chemical spill that triggers CERCLA's emergency notification may not trigger EPCRA's, and vice versa. One distinct difference between CERCLA and EPCRA is that EPCRA focuses on information used to prepare and plan for a chemical spill or emergency, and CERCLA deals more with notification of a spill, response, and cleanup measures.
The emergency notification requirement hinges on a term, "release," which has a special regulatory meaning. The amount of chemical that must be "released" before emergency notification is required depends on the particular chemical. For example, 1,000 pounds of Sulfuric Acid must be spilled ("released") before triggering the special emergency notification requirements. A release can be to the air, water, sewer, land or any combination of these. To correlate with other EPCRA requirements, there must be 1,000 pounds of Sulfuric Acid on-site before the TPQ is reached. Examining another EHS chemical, Phosphorus, 100 pounds is the TPQ, but a release of one (1) pound triggers emergency notification.
| For the purposes of Section 304 (CHEMICAL RELEASE), a facility is also aircraft, motor vehicles, and rolling stock. |
What is the Emergency Notification?
If there is an accidental "release" of an EHS from a facility, the owner or operator is required to immediately notify the community emergency coordinator for the LEPC by telephone, radio, or in person. In many cases, LEPCs have delegated (passed on the duty) or designated the local fire department having jurisdiction as the recipient of such an emergency notification. The facility owner operator must make sure that the facility knows who to call in the event of a chemical spill. The owner or operator must also immediately call the National Response Center at 1-800-424-8802. Failure to call the National Response Center (which is staffed by the US Coast Guard) can result in large financial penalties through an enforcement action.
Whether called or radioed in, or in person, the contents of the notification must include:
Following the "release" and the immediate emergency notice, EPCRA requires at least one written follow-up notice. More written notices may be required as additional pertinent information becomes available. The written follow-up must set forth and update certain required information. This information required in the written follow-up report is:
The idea of the written follow-up report is to provide this vital information to the response agencies and the public after a "release" has occurred. The public has a right under federal law to this information. A "release" involves more than just a minor spill of chemicals. A "release" involves a significant spill of chemicals into the environment. It is in the best interests of a business to provide complete and accurate information.
The public can and will use this written follow-up report information to learn about and understand the effects of a significant chemical spill. The LEPC cannot be expected to assure the accuracy of the written follow-up report because there are often resource problems with the LEPCs. LEPCs are often short on funding and high on tasks, so they may not have the staff or resources to make sure that the written follow-up notice is entirely correct. And the EPCRA law is silent on the duties of the LEPC in assuring that the written follow-up report is accurate. I f a citizen is concerned about the accuracy of a written follow-up report, the citizen may certainly request the LEPC to add that as an agenda item to the next LEPC meeting, and ask to speak to the issue. A citizen may also request EPA intervention.
[DOWNLOAD TO EPA WEB PAGE REGS RE RELEASES, EHS]
| 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 (Some of the EPCRA Hotline's Information and the Guide to EPA's Electronic Resources is available on the Internet at: http://www.epa.gov/epaoswer/hotline/netguide.htm ) |
Emergency Response Notification System (ERNS)
There is a tracking system for "minor" spills also, the ERNS database. The Emergency Response Notification System (ERNS) compiles the data about chemical spills below the "release" threshold amounts and small chemical incidents. This data is also studied. The web address is http://www.epa.gov/ERNS/index.html.
Of course, it does not make sense to not notify the emergency responders or emergency planners when a new facility opens, or when processes change at a facility and new chemicals are brought on-site in reportable quantities. Section 311 of EPCRA takes care of this problem. Once a facility has reportable quantities of a chemical on-site, it must send the MSDS for the chemical, or provide a list of the name or names of the chemical(s) on-site to the LEPC, fire department, and SERC within three months of the date when the chemical is on-site at levels that would trigger EPCRA Section 312 reporting requirements. (See EPA's free publication "List of Lists") If a new facility has opened and the public wants to know about the chemicals stored there, the public may request the 311 information from the LEPC. If a facility has started using a new chemical, the same procedure applies.
There is no point in waiting until the last day of the three months. New facilities can have accidents and spills during that time, and the facility owner/operator will want to inform the emergency responders promptly. It is in the best interest of the nearby community and the business itself when there are new chemicals on-site at an established facility, or new facilities with new chemical hazards, to have the chemical hazard information in the hands of the fire department, LEPC, and SERC as soon as possible.
EPCRA REPORTING EXEMPTIONS--WHAT DOESN'T HAVE TO BE REPORTED:
There are five (5) exemptions from reporting requirements for community Right-To-Know. Some apply to specific chemicals and some to specific chemical uses.
| It is important to note that a farm that stores ammonia or other chemicals on-site still must notify the SERC that these chemicals are present. The easiest way to accomplish this is to file a Tier Two Report for these chemicals. It is also a good idea for these farms and agricultural operations to prepare an emergency plan. There is nothing to require a Tier Two Report from an agricultural operation, but filing a Tier Two report and preparing an emergency plan is in everyone's best interest if large amounts of hazardous chemicals are stored on-site. If something goes wrong, the emergency responders will be better prepared to assist and minimize loss of property and life if they have the basic information they need to mitigate a disaster. |
Golf courses are not considered agricultural operations, but their owners and operators may mistakenly believe that they are. Golf courses can use fertilizers, pesticides, herbicides, and even acids in treating the soils at the golf course. All of these present a potential hazard for those on or near the golf course.
| REMEMBER: Compliance with EPCRA Section 311 and 312 require reporting chemical inventory information to three (3) distinct entities: the local fire department, the State Emergency Response Commission (SERC), and the Local Emergency Planning Committee (LEPC), which is usually on the county level. It is important that the appropriate reports be complete and that they are filed with all three entities by the March 1st deadline. The deadline for reporting under Section 312 is March 1st of the following calendar year. When there are process changes or if the facility meets a threshold for reporting a chemical during the calendar year, however, the MSDS for the chemical or its name must be provided to the LEPC, SERC, and fire department with 90 days, according to the requirements of Section 311. There is no reason to wait the full 90 days. |
AVOIDING PENALTIES and ENFORCEMENT ACTIONS
The EPA penalty policy for EPCRA noncompliance considers each entity to be a point of compliance. Failure to file the appropriate reports with even one of these three agencies (SERC, LEPC, fire department) could result in a fine up to $27,500 per day, per chemical, per violation, for a Section 312 violation. Failure to file the appropriate information [MSDS, list or name of chemical(s)] with even one of these three agencies could result in a fine up to $11,000 per day, per chemical, per violation, for a Section 311 violation.
To comply with 311 or 312, a facility should file a Tier Two Report. [Link to Tier Two] If a facility, at any one time during the year, meets the threshold for an Extremely Hazardous Substances (EHS), or meets or exceeds the 10,000 pound threshold for any chemical that requires a Material Safety Data Sheet, a Tier Two report must be filed with the three appropriate agencies. Any chemical listed on the EHS list must be reported if the facility has enough of the EHS on-site at any time during the calendar year to meet or exceed the EHS chemical's reporting threshold.
OTHER FACILITIES THAT STORE CHEMICALS
The portions of EPCRA regarding chemical storage, known as Sections 302, 311, and 312, require reporting when a facility stores or has chemicals on-site at or above certain quantities. Other than having chemicals at or above a certain quantity, there are no other qualifiers. When determining what is on-site, facility owners and operators should carefully review and calculate the amounts of chemicals in process at the facility.
Any facility that has chemicals on-site should investigate whether it has reporting requirements under EPCRA. Because the basis of the law is chemical storage and releases, size or type of facility does not matter, only if chemicals are present at any one time of the year, at the facility, and at a sufficient quantity to trigger reporting requirements. A facility does not have to be a manufacturer to have to comply with this law. The most common example is that of facilities using ammonia refrigeration for cooling purposes, such as grocery warehouses, ice factories, etc. Industrial Ammonia is a very hazardous substance that, when released out of its container in sufficient concentrations, can cause injury and death to anyone in close proximity to the release. Ammonia is the hazardous chemical most commonly released in chemical accidents in America, and is the leading cause of blindness caused by industrial accidents.
Facilities using ammonia refrigeration units are not necessarily familiar with chemical release procedures or necessarily have personnel on-site who are adequately trained in OSHA chemical procedures. Facilities that do not normally handle or use hazardous chemicals as a normal course of its business may not realize that chemical hazard awareness is the responsibility of the facility owner and/or operator. Ammonia cooling is an excellent example. A hypothetical facility that stores food products utilizing ammonia cooling and contracts out (out-sources) to service the ammonia system is still responsible for adequately training its own employees under the OSHA Hazard Communication Act and is still liable for anything that goes wrong with the chemical system at the facility. A facility owner or operator should not ignore the facility's responsibilities! The consequences of a chemical release, especially in populated areas, can be quite disastrous.
Few companies carry enough insurance to cover the consequences of a serious chemical release. The adverse publicity alone can negatively impact a businesses bottom line not to mention the possibility of civil actions being filed against the facility, of which the defense alone can be a substantial cost. Avoid all this by being prepared and complying with all requirements of the law. Compliance with emergency planning laws is not a burden; it's a responsibility. Compliance can achieve mitigation, which can achieve cost savings in the event of an emergency. It is also the responsibility of every facility, by law, to provide a safe workplace. Hazard Communication Standard
There are severe civil penalties for noncompliance with section 302 of EPCRA. The statute calls for "not more than $25,000 (now $27,500) per day for each day during which the violation continues." "In the case of a second or subsequent violation, the penalty may not be more than $75,000 for each day during which the violation continues."
Further, there are special criminal penalties for a facility owner or operator who knowingly and willfully fails to provide Section 302 notice. Upon conviction, the facility owner or operator shall be fined not more than $27,500, or imprisoned for not more than two (2) years, or both. For a subsequent conviction, the facility owner or operator shall be fined no more than $55,000 or imprisoned for not more than five (5) years, or both.
One unusual thing about Section 302 of EPCRA is that it requires ANY facility that has a quantity of an EHS on-site at the facility at or above the TPQ to notify the SERC and the LEPC that it is subject to the reporting requirements of EPCRA Section 302. Normally, this notification requirement is satisfied by filing a Tier Two Report. This applies to farms and agricultural facilities. When a farm gets a tankful of ammonia to apply on the soil, for example, the TPQ for ammonia (500 pounds) would be exceeded. The farm would have to notify the LEPC and SERC that the ammonia is (occasionally) present. This makes sense because in the event that something goes amiss and there is an unplanned release of the ammonia, the emergency responders would know what chemical hazards to expect and would be better prepared to deal with the consequences of a spill.
PREPARING A FACILITY EMERGENCY PLAN
The facility owner or operator will need to gather certain information to prepare the facility emergency plan. There must be a 24-hour emergency coordinator and an alternate 24-hour emergency coordinator. The days of the week and the facility's hours of operation, and the number of persons on each shift at the facility must be collected, including office staff and other support personnel during each shift. The information must be gathered regarding: 1) hazardous materials clean-up and disposal assistance and that contact information; 2) in-house emergency response procedures to be used in the event of an imminent or accidental release of EHS, including on-site response capabilities and levels of training of facility personnel, the identity of emergency units in close proximity to the facility (fire, medical, police), on-site/off-site alarms, siren/horns, for personnel notification, evacuation plans, including routes, assembly areas, and methods to account for personnel ; and 3) the location of equipment used to monitor or test the air in the event of a spill. There is more involved to developing a facility emergency plan, also. The best alternative is to use the BOLDER Planning Tool and accomplish everything at once.
For a good example of a list available on the Internet of what is needed to prepare a facility
emergency plan, try:
http://www.state.az.us/es/azserc/ERForm.htm