WHAT IS COMMUNITY RIGHT-TO-KNOW INFORMATION?

It is important to note that EPCRA allows states, counties, and even local governments have the authority to implement more stringent regulations than EPCRA, they just cannot adopt or implement less stringent regulations than EPCRA.

The MSDS is the building block that leads to Tier Two (chemical inventory) Reporting requirements and understanding the chemical hazards. The Tier Two Reports and facility emergency plans are used to make the regional emergency plan. The emergency notification sets the appropriate emergency response in motion. The written follow-up report is used to help determine what effects the "release" had and what may be needed to provide medical attention and possibly decontamination.

There are two paths that lead to facility EPCRA Tier Two reporting. The first is the presence of sufficient amounts (10,000 pounds) of OSHA chemicals (require an MSDS) at a facility during a calendar year. The second is the presence of sufficient amounts of Extremely Hazardous Substances (EHS) at a facility during a calendar year. Understanding the OSHA chemicals requires some understanding of the relationship between OSHA and EPCRA.

Explanation of EPCRA/OSHA role/relationship - MSDS

EPCRA is an unusual approach to law in that it "weds" an environmental law to the Occupational Safety and Health Act, which created the Occupational Safety and Health Administration (OSHA). These OSHA worker protection laws require employers to train and inform workers about chemical hazards present at the work site. The idea is that, through proper training about chemical hazards at the work site, employers can protect workers. OSHA created the Material Safety Data Sheet, known as the MSDS, to communicate information to workers about chemical hazards at the workplace.

EPCRA also "weds" worker health and safety to concerns about community and responder safety. If a chemical present at the work site can potentially harm workers, then it could harm responders. It also stands to reason that if large enough quantities of these chemicals or mixtures are somehow released into the environment, there could be harm to those nearby, including businesses, communities, and the public. The BOLDER Project software allows a facility's MSDSs to be scanned in or the data to be manually entered. As MSDSs change for a facility, the facility can quickly update the facility data and electronically transmit the updated data to the fire department. This allows a real-time database for the responders to rely upon in the event of an incident.

EPCRA takes the MSDS data presented to workers about chemical hazards at the worksite and uses it as a foundation for the information that will be provided to the fire departments, the public, and communities about chemicals present in or adjacent to their neighborhoods. EPCRA also uses the MSDS data for the foundation of a report that must be prepared and provided in the event of a release of these chemicals. http://www.epa.gov/docs/epacfr40/chapt-I.info/subch-J/40P0355.pdf

The data about a chemical or mixture of chemicals used at a facility is presented on a Material Safety Data Sheet, or MSDS. While there is not a specific format required by OSHA for MSDS sheets, many follow a common format. OSHA provides guidance for the subjects that must be covered, but having the specific information about EPCRA (SARA Title III) requirements on MSDSs is not covered at all by OSHA. There is no single mandatory form for the MSDS, so workers and the public will see many different types. Facility operators and owners may not know what SARA or EPCRA is.

OSHA has now completed the circle by requiring EPCRA compliance and having OSHA inspectors review a facility's EPCRA compliance as part of a standard facility inspection. OSHA's relatively new directive, CPL 2-2.59A (http://www.osha-slc.gov/OshDoc/Directive_data/CPL_2-2_59A.html), along with its news release (http://www.osha.gov/media/oshnews/apr98/osha98163.html), specifically instructs its inspectors to verify if the employer/owner/operator has reported their EPCRA reportable hazardous materials AND coordinated its emergency action plan with the local fire department having jurisdiction.

MSDS Information:

What is consistent about MSDSs is the type of information included on each form.

OSHA developed the MSDS form as part of the Hazard Communication Standard (HCS), or Worker Right-To-Know regulation. OSHA wanted to make sure workers had one basic reference for most of the information on a hazardous substance. An MSDS tells:

The OSHA regulations are posted on the Internet. MSDS Regulations are in Part G. http://www.osha-slc.gov:80/OshStd_data/1910_1200.html

The MSDS information that the OSHA guidance requires first examines if the chemical is a single substance or a mixture. If it is a single substance, the chemical and common name(s) of the chemical are required.

If the hazardous chemical is a mixture that has been tested as a whole to determine its hazards, the chemical and common name(s) of the ingredients that contribute to these known hazards, and the common name(s) of the mixture itself must be provided.

If the hazardous chemical is a mixture that has not been tested as a whole, the MSDS must provide:

  1. The chemical and common name(s) of all ingredients that have been determined to be health hazards, and which comprise 1% or greater of the composition, except that chemicals identified by OSHA regulations as carcinogens (cancer-causing agent) shall be listed if the concentrations are 0.1% or greater; and,

  2. The chemical and common name(s) of all ingredients that have been determined to be health hazards, and which comprise less than 1% (0.1% for carcinogens) of the mixture, if there is evidence that the ingredient(s) could be released from the mixture in concentrations which would exceed an established OSHA permissible exposure limit** (OSHA PEL) or ACGIH (American Conference of Governmental Industrial Hygienists) Threshold Limit Value, or could present a health risk to employees; and,

  3. The chemical and common name(s) of all ingredients that have been determined to present a physical hazard when present in the mixture;

  4. The physical and chemical characteristics of the hazardous chemical (such as vapor pressure, flash point);

  5. The physical hazards of the hazardous chemical, including the potential for fire, explosion, and reactivity;

  6. The health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions which are generally recognized as being aggravated by exposure to the chemical;

  7. The primary route(s) of entry;

  8. The OSHA permissible exposure limit, ACGIH Threshold Limit Value, and any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the Material Safety Data Sheet, where available;

  9. Whether the hazardous chemical is listed in the National Toxicology Program (NTP) Annual Report on Carcinogens (latest edition) or has been found to be a potential carcinogen in the International Agency for Research on Cancer (IARC) Monographs (latest editions), or by OSHA;

  10. Any generally applicable precautions for safe handling and use which are known to the chemical manufacturer, importer or employer preparing the material safety data sheet, including appropriate hygienic practices, protective measures during repair and maintenance of contaminated equipment, and procedures for clean-up of spills and leaks;

  11. Any generally applicable control measures which are known to the chemical manufacturer, importer or employer preparing the Material Safety Data Sheet, such as appropriate engineering controls, work practices, or personal protective equipment;

  12. Emergency and first aid procedures (especially relevant to firefighters);

  13. The date of preparation of the Material Safety Data Sheet or the last change to it; and,

  14. The name, address and telephone number of the chemical manufacturer, importer, employer or other responsible party preparing or distributing the Material Safety Data Sheet, who can provide additional information on the hazardous chemical and appropriate emergency procedures, if necessary.

**OSHA PELs (Permissible Exposure Limits) for some chemicals have been known to change dramatically from one year to the next, as adverse health effects studies provide more information about the chemical. Since the distance the public is evacuated from a spill of a chemical is determined in part by what the OSHA PEL of the spilled chemical is, this disparity between permissible exposure levels can have real implications for the public and responders. That uncertainty is another reason to avoid exposure to chemicals from a chemical spill at any level. Many OSHA PELs were derived from Threshold Level Values (TLVs) published in 1968.

OTHER RELEVANT OSHA MSDS REGULATIONS:

If no relevant information is found for any given category on the material safety data sheet, the chemical manufacturer, importer or employer preparing the Material Safety Data Sheet shall mark it to indicate that no applicable information was found.

Where complex mixtures have similar hazards and contents (i.e. the chemical ingredients are essentially the same, but the specific composition varies from mixture to mixture), the chemical manufacturer, importer or employer may prepare one Material Safety Data Sheet to apply to all of these similar mixtures.

The chemical manufacturer, importer or employer preparing the Material Safety Data Sheet shall ensure that the information recorded accurately reflects the scientific evidence used in making the hazard determination. If the chemical manufacturer, importer or employer preparing the Material Safety Data Sheet becomes newly aware of any significant information regarding the hazards of a chemical, or ways to protect against the hazards, this new information shall be added to the Material Safety Data Sheet within three months. If the chemical is not currently being produced or imported the chemical manufacturer or importer shall add the information to the Material Safety Data Sheet before the chemical is introduced into the workplace again.

Chemical manufacturers or importers shall ensure that distributors and employers are provided an appropriate Material Safety Data Sheet with their initial shipment, and with the first shipment after a Material Safety Data Sheet is updated.

The chemical manufacturer or importer shall either provide Material Safety Data Sheets with the shipped containers or send them to the distributor or employer prior to or at the time of the shipment.

If the Material Safety Data Sheet is not provided with a shipment that has been labeled as a hazardous chemical, the distributor or employer shall obtain one from the chemical manufacturer or importer as soon as possible.

The chemical manufacturer or importer shall also provide distributors or employers with a Material Safety Data Sheet upon request.

Distributors shall ensure that Material Safety Data Sheets, and updated information, are provided to other distributors and employers with their initial shipment and with the first shipment after a Material Safety Data Sheet is updated;

The distributor shall either provide Material Safety Data Sheets with the shipped containers, or send them to the other distributor or employer prior to or at the time of the shipment.

EPCRA AND MSDSs:

Often the MSDS will specifically state that a chemical is regulated by SARA Title III, even mentioning the specific section (302, 311, 312, 313) and the reportable quantity of the chemical, but unless the person reading the MSDS knows about EPCRA/SARA Title III, there is an information gap there that does not help with compliance. Facility owners and operators have been known to ask, "Who is SARA?" It is worthwhile to look at the MSDS for a chemical and see if the EPCRA information is disclosed. There is no requirement for the MSDS to include this information, but it is a good idea.

MSDS PROBLEMS

But there are problems with MSDSs. Not all of the information is presented in the same way because there is not one specific format. There is often disagreement on the data on the different MSDSs. A review of several different MSDSs for the same chemical can show different information for the same chemical.

To better understand what a chemical is and what its properties are, try these Internet sites for MSDSs. Universities and trade associations maintain these websites.

LINK TO VARIOUS MSDS SITES

http://MSDS.PDC.CORNELL.EDU/issearch/msdssrch.htm
http://siri.uvm.edu/msds
http://www.ilpi.com/msds/index.chtml

There is nothing that requires a detailed accounting of all information on an MSDS. Some are "bare-bones," others have more information. There can be disagreement about what constitutes safe levels of exposure or the instructions for medical attention.

If the firefighter is trying to handle a chemical spill, there will not be time to read all of the facility's MSDSs during an incident. This underscores why emergency planning and preparation is so important. The lack of a single format for MSDSs can be a problem for someone trying to quickly review them for response information. The information is not always on the same place on different MSDSs. If the chemical is a brand name chemical with many hazardous components, it may be difficult to assess what the total danger is. And few if any MSDSs will explore all the potential dangerous chemical interactions and reactions.

SPECIAL CHEMICAL REACTIONS SOFTWARE

When responding to a facility incident, firefighters may encounter situations where there may be incompatible chemicals stored adjacent to each other, or even mixed due to circumstances related to the incident. Firefighters now have access to the Chemical Reactions Software that can quickly assist them in assessing the potential hazards. 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. Firefighters and fire departments should also utilize this software when conducting fire inspections to alert the facility owner or operator of incompatibilities it shows. The fire department should also alert the facility owner or operator of the web site, and encourage the use of the Chemical Reactivity Worksheet by facility owners and operators to better design and manage their facilities and to better prepare for chemical accident scenarios.

OSHA CHEMICALS AND THE TIER TWO REPORT

The first category of Tier Two reporting is often called OSHA chemicals. There are over 600,000 chemicals that have MSDSs. If OSHA requires a facility operator or owner to provide an Material Safety Data Sheet (MSDS) to the employees for a chemical or chemical mixture AND there are 10,000 pounds of that chemical or chemical mixture on-site during the previous calendar year, at any one time, the facility owner or operator must file a Tier Two Report for that chemical or chemical mixture. One example is a facility that has large tanks of liquid chemicals that are stored and later blended together to create plastics. If these tanks are filled with 2,000 gallons or more, which very likely weighs more than 10,000 pounds, the facility has to file Tier Two Reports. Gasoline is another example of this. A filled 2,000 gallon tank of gasoline weighs more than 10,000 pounds. Facilities may purchase large quantities of chemicals and mixtures that are delivered in large shipments, and it is easy to have more than 10,000 pounds on-site of one mixture. Twenty 55-gallon barrels of a chemical could arrive on just one shipment, and that can be enough to trigger Tier Two reporting requirements. OSHA chemicals are hazardous, and are to be treated as such by responders.

However, EPCRA does not require a facility emergency plan for OSHA facilities, although state, county, or local regulations might. Of course, it is a sensible approach for any facility with hazardous chemicals, even just OSHA hazardous chemicals, to prepare and implement a facility emergency plan. While the OSHA chemicals are not Extremely Hazardous Substances (EHS), they are hazardous by definition.
{LINK to Tier Two Report Form}

EHS CHEMICALS AND THE TIER TWO REPORT

The second category consists of a list of chemicals named Extremely Hazardous Substances (EHS). Many of EPCRA's requirements hinge on these types of facilities. EPCRA Section 302 specifically deals with EHS. 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. There is a disconnect built into EPCRA here. The EPCRA law does not require that the facility make this notification to the fire department, so fire departments will want to make sure that the LEPC passes the notification data through to them.

Normally, this 302 notification requirement is satisfied by filing a Tier Two report. This 302 notification requirement applies to routine agricultural operations (farms) and fertilizer outlets that sell directly to the ultimate consumer. Section 312 of EPCRA, which speaks to the requirements for filing Tier Two Reports, actually exempts these types of agricultural operations. These conflicting portions of EPCRA can cause some confusion and noncompliance, but it is in the best interests of all parties that these types of facilities report so that an appropriate response may be planned and undertaken. Agricultural and fertilizer operations such as these often will have large quantities of ammonia on site periodically, and may have several EHS in substantial quantities year-round.

WHY AN EHS CATEGORY?

EPA developed the list of chemicals designated as EPCRA EHS chemicals. Chemicals are put on the EHS list if they have certain properties. These properties are toxicity, reactivity, volatility, dispersability, combustibility, and flammability.

Toxicity includes any short term or long term health effect that may result from a short-term exposure to the substance. Reactivity means the ability to cause a chemical reaction with other chemicals present in the environment, instability. Volatility means ability to evaporate. Dispersability means ability to move from the point of the spill. Combustibility means ability to burn. Flammability means ability to catch fire or ignite.

To obtain a list of EHS and other EPA regulated chemicals, and the laws that apply, call (800) 424-9346 and ask for a free copy of the "List of Lists."

The list of EHS chemicals is on an EPA website. Scroll until the list appears. (http://www.epa.gov/docs/epacfr40/chapt-I.info/subch-J/40P0355.pdf)

EHS AND EMERGENCY PLANNING

A general rule of thumb with EHS is if a facility uses an EHS in a process, it must develop a facility emergency plan. With some EHS, having as little one (1) pound on-site triggers reporting and planning requirements. But there are sometimes different threshold amounts for EHS that trigger requirements for reporting (submitting a Tier Two) and planning (developing an emergency plan). It makes more sense to just plan either way. Utilizing the BOLDER Project software handles the entire chore.

Click here for an example of an emergency planning questionnaire. (http://www.state.az.us/es/azserc/ERForm.htm)

If the facility has or stores on-site enough chemicals classified as Extremely Hazardous Substances (EHS), the facility owner/operator must determine the maximum amount of each EHS that was actually on-site during the calendar year. This determination would be the sum of the collective weight of each EHS in process at the facility; the weights of EHS stored in chemical storage rooms and chemical storage areas; or any other collective weights of EHS on-site.

Illustration: If a facility has 100 pounds of Hydrogen Fluoride (Hydrofluoric Acid) on-site during a calendar year, even if for only one day of the year, the Tier Two Report must be filed, and a facility emergency plan must be promulgated (developed). In making the determination, the weight of the Hydrogen Fluoride that arrives in fresh shipments from the chemical supplier must be added in.

Example 1: Facility X has several chemical mixtures it uses that have Hydrogen Fluoride as a component. Some of these are in tanks mixed with water into dilute solutions, and some is in opened and unopened barrels and containers waiting to be used. The weights of the Hydrogen Fluoride in the tanks mixed with water must be determined and added with the weights of the Hydrogen Fluoride in the opened and unopened barrels and containers waiting to be used. If this combined weight of Hydrogen Fluoride is 100 pounds or more, there must be a Tier Two Report filed and a facility emergency plan created.

Example 2: Facility X normally has 75 pounds of Hydrogen Fluoride in its process. It orders new chemicals, and a shipment of the new chemicals arrives with 35 pounds of Hydrogen Fluoride in the chemical mixtures that have arrived. This 35 pounds, when added to the normal 75 pounds in process, puts the facility over the reporting and planning threshold. A Tier Two Report and facility emergency plan must be prepared.

Extremely Hazardous Substances (EHS) chemicals have differing amounts that trigger reporting requirements. This amount is called the RQ, for "Reportable Quantity." The EPA SARA Title III List of Lists contains this data. But despite having an intricate method for determining Threshold Planning Quantities (TPQs) for the various EHS, the lower of 500 pounds or the actual TPQ, when it is lower than 500 pounds, is the RQ. Thus, Sulfuric Acid, with a TPQ of 1,000 pounds has an RQ of 500 pounds. Hydrogen Fluoride (Hydrofluoric Acid) has a TPQ of 100 pounds, and the RQ is also 100 pounds.

If enough EHS is on-site, there will also be emergency planning requirements. This is called the TPQ, or "Threshold Planning Quantity." The RQ for an EHS may not be the same for its TPQ. (See above) However, if the TPQ has been reached, the RQ will have been also. This information can be found on EPA's free publication: "List of Lists." Call the EPA Hotline to order 1-(800) 424-9346.

Anyone can call the EPCRA 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 are available on the Internet. Click here to EPA Electronic Resources Website.) http://www.epa.gov/epaoswer/hotline

When determining what the threshold reporting and planning quantities were for EHS chemicals, EPA assigned chemicals based on an index that accounts for the toxicity and the potential for each chemical, in an accidental release, to become airborne. This approach does not give a measure of absolute risk, but provides a basis for relative measures of concern.

Under this EPA approach, the level of concern for each chemical is used as an index of toxicity, and the physical state and volatility are used to assess its ability to become airborne. The two indices are combined to produce a ranking factor. Chemicals with a low ranking factor (highest concern), based on the EPA's technical review, were assigned a TPQ of one pound. Chemicals with the highest ranking factors, indicating lower concern, were assigned a TPQ of 10,000 pounds. This ensures that any facility handling bulk quantities of any EHS would be required to notify the SERC. EHS chemicals were assigned to intermediate categories of 10, 100, 500, or 1,000 pounds based on order of magnitude ranges in the ranking factors.

The selection of the intermediate categories was based on standard industrial container sizes between one and 10,000 pounds.

The EPA believed that limited state and local resources should be focused on those substances that could cause the greatest harm in an accidental release. The TPQs developed in this approach meet the objective such that substances that are most likely to cause serious problems (extremely toxic gases, solids likely to be rapidly dispersed, or highly volatile liquids) have lower TPQs than those that might be toxic but are not likely to be released to the air (non-reactive, non-powdered solids). Firefighters should consider that their risk from EHS is usually different (relatively greater) than the risk posed to people beyond the facility boundaries because the firefighters will be close to the source of toxic fumes and vapors.

The MSDS for these EHS chemicals or chemical mixtures containing EHS chemicals will often state that the chemical or chemicals in the chemical mixture are subject to the reporting requirements of Section 302 of SARA Title III, or will mention EPCRA Section 302, which is the specific section of the EPCRA law that covers Extremely Hazardous Substances (EHS). Remember that there will be a Material Safety Data Sheet (MSDS) for chemicals with hazardous components and for chemicals designated as Extremely Hazardous Substances (EHS).

WHAT IS TIER ONE INFORMATION?

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. The fire department of jurisdiction, the LEPC, and the SERC are all recipients of this Tier One Report. The Tier One Report is due on the same date as a Tier Two Report, March 1st of the following calendar year.

Actually, the federal EPCRA law only requires the Tier One information, and leaves it to the SERCs, LEPCs, or fire department to request a Tier Two Report. But as a practical matter, EPCRA Tier Two reports are almost always the form submitted as SERCs, LEPCs, and fire departments have almost universally requested the Tier Two Reports instead of Tier One information. EPCRA empowers a fire department of jurisdiction to request that a facility file a Tier Two report, and EPCRA requires that the facility shall provide the information.

Once a facility has filed a Tier Two report, the fire department has the right under EPCRA to conduct an on-site inspection of the facility after making a request to the owner or operator of the facility. The facility operator or owner must also provide the specific information about the location of hazardous chemicals at the facility to the fire department. Utilizing the BOLDER Project software handles the entire chore.

WHAT IS A TIER TWO (CHEMICAL INVENTORY) REPORT?

The Tier Two form, when filled out correctly, provides much more information than just the Tier One. The BOLDER Project software will compile this Tier Two report for a facility. The data may be electronically transferred or may be printed out for paper copies.

The Tier Two report 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 fire department, the LEPC, and the SERC must be provided this information.) 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 chemical mixture has several chemical ingredients. One of these boxes, Pure or Mix, on the Tier Two form will always be checked for each chemical.

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," "corrosive," 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," 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, a 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 on site under Section 5. It will also show the average amount on site. 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.

CODE VALUE
1
2
3
4
5
6
1 to 99 pounds
100 to 999 pounds
1000 to 9,999 pounds
10,000 to 99,999 pounds
100,000 to 999,999 pounds
1,000,000 pounds or more

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

The Tier Two form also has places to be filled out for the type of container or containers the chemical is in, whether it is under pressure, and the temperature it is maintained at, if any. This is found at Section 6 of the Tier Two Report. The same chemical could be stored at several places around the facility, and in several types of containers. Examples of containers include: above ground tank, below ground tank, tank inside building, steel drum, plastic or non-metallic drum, can, carboy, silo, fiber drum, bag, box, cylinder, glass bottles or jugs, plastic bottles or jugs, tote bin, tank wagon, and a rail car. The chemical could be at more or less pressure than the outside (ambient) air. It could be kept at warmer than ambient, or less than ambient temperatures. It could be kept at super cold (cryogenic) temperatures.

A brief description of the storage locations should be printed onto the Tier Two report. The idea is that the emergency responders will be able to locate the area easily. It is an option to attach a site plan or diagram. There may be more than one location. Emergency responders do not like surprises, so it is best to have the information complete. Though not a requirement, it is also best if the facility invites in the fire department to review its emergency plan so both the facility and the fire department understand what each others' needs are going to be in an emergency situation. This is most effective when done prior to an emergency incident.

The location of chemicals stored at a facility may be withheld from the public, but not from the fire department, the LEPC, and the SERC. A facility may have this held confidential by writing "Confidential" on the Non-Confidential Location section of the Tier Two form.

Section 7 of the Tier Two Report has a certification statement that must be signed attesting to the truth, accuracy, and completeness of the information on the Tier Two Report.

The Tier Two report provides much information, but the BOLDER Project software provides much more relevant responder information in a convenient electronic format.

TRADE SECRETS

There is an entire section of EPCRA that deals with trade secrets and protecting confidential business information (CBI). The fight over CBI was one of the big issues in passing the EPCRA legislation. The concept behind this is that industry may need to keep some information confidential to compete against similar industries, or to protect the investment in new chemical processes, chemical mixtures, etc.

The facility data provided when a facility uses the BOLDER Project software is not available to the public from the fire department. The BOLDER Project transmits electronically, or by paper, the Tier Two report (Community Right-To-Know information) of a facility to the LEPC and SERC of jurisdiction. The public will not have access to facility data through the BOLDER Project. The public will have access to a facility's Tier Two data at the LEPC or SERC of jurisdiction.

The claim of confidentiality is not to be used lightly. It must meet the criteria set forth in the EPCRA law. To be able to declare the information confidential, the information cannot have already been disclosed publicly; the information cannot be information that is otherwise required to be disclosed by other federal or state laws; the disclosure of the information must be shown to likely cause substantial harm to a business' competitive position; and the chemical identity cannot be readily discovered through reverse engineering [a complicated review of chemicals and amounts in the waste stream of a facility].

Anyone claiming such trade secret confidentiality must petition the EPA to keep the information secret, in an administrative process. If the EPA does not grant the trade secret status, the facility may ask for a court to review the matter. As a practical matter, not many facilities have claimed trade secret exemptions in EPCRA reporting.

PHYSICIAN ACCESS TO TRADE SECRET INFORMATION

It is important to know that even trade secrets must be disclosed to health professionals (doctors, nurses) if the information is requested. There are certain types of scenarios in which this confidential information will be provided to health professionals.

One type of request could happen if there was a patient complaining to a health professional that the "secret" chemical was the suspected cause of noted or suspected adverse health reactions. This situation could easily happen to a responder. The health professionals must keep the information confidential, and to get the confidential information, the health professional must submit a written statement of need. This written statement of need must state that the information about the "trade secret" chemical is needed to treat or diagnose a patient, that the patient has likely been exposed to the "trade secret" chemical, and that knowledge of the specific chemical identity of the "trade secret" chemical will assist in diagnosis or treatment of the patient.

In the event of a medical emergency, which is determined by a physician or nurse, the facility must provide the MSDS, Tier Two Report, and the specific chemical identity of a "trade secret' chemical if the person may have been exposed to the "trade secret" chemical and the information about the chemical will assist in first aid diagnosis or treatment. In this type of emergency situation, there is no requirement of the statement of need or a written confidentiality agreement, but the facility can request and get one afterwards, as circumstances will allow.

And to make sure that the information about a "trade secret" chemical is available to local health professionals so that they can take preventative measures (steps to prepare for a chemical disaster by having the correct treatments and antidotes on stock locally), the EPCRA law requires the owner or operator of a facility to provide the specific chemical identity of the "trade secret" chemical to any health professional (physician, toxicologist, epidemiologist) who is a local government employee, or under contract with a local government, who requests the information in writing and provides the written statement of need and a written confidentiality agreement. The local government employee or contractor may request this "trade secret" chemical information only for certain reasons:

COMMUNITY ACCESS TO "TRADE SECRET" CHEMICAL HEALTH EFFECTS

Also, the SERC is required to provide the information about the adverse health effects of any "trade secret" chemical to any person who requests this information. In other words, there are no secrets allowed about the potential adverse health effects of a "trade secret" chemical--if a person wants to know about the potential adverse health effects of a "trade secret" chemical, this information will be made available upon request. "Person" also means a firefighter or fire department. Also, any duly authorized committee of the US Congress may request the specifics about any "trade secret" chemical.

TIER TWO REPORTING REQUIREMENTS [LINK to Tier Two Report Form]

The Tier Two Emergency and Hazardous Chemical Inventory, Tier II, or Tier Two Report, is something that the EPCRA law specifically mentions as being available to the public. This Tier II report must be filed by a facility with the fire department, LEPC, and SERC by March 1st of the following calendar year for the inventory of chemicals on-site. To say this another way, whatever chemicals a facility has on-site during the year must be reported by March 1st of the following calendar year. Tier Two Reports are always looking backwards in time to the previous calendar year. The facility does not have to file a Tier Two Report if there were never enough hazardous chemicals on-site to trigger the reporting requirement. The owner or operator of a facility must see to it that the Tier Two Report is filed with the appropriate entities. EPCRA makes them both responsible to avoid legal disputes about which is actually responsible for filing the Tier Two Report. (The owner of the property or facility may not be the operator of the property or facility.) The BOLDER Project software will prepare a facility's Tier Two reports and updates.

To determine if there were enough hazardous chemicals on-site to trigger Tier Two reporting requirements, the facility owner or operator has to consider the two separate classes of chemicals covered by EPCRA, the OSHA chemicals and the EHS.

Any EHS facility has certain, special, spill notification requirements.

The SERC notifies the USEPA of the EHS facilities that report to it. States may make more restrictive regulations regarding EHS facilities than EPCRA's requirements, and additional EHS facilities identified under state law would also be reported to USEPA.

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, which is 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 that are often also classified as EPCRA 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.

The emergency notification requirement hinges on a term, "release," which has a special regulatory meaning. The chemical "released" must result in exposure to persons outside the boundaries of the facility site, or else it is exempted from release notification. If off-site exposure occurs, the next criteria to consider is whether enough has been "released."

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, so the TPQ and the reportable quantity for a release may differ.

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 or operator must make sure that the facility knows whom 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 to the facility through an enforcement action.

Whether called or radioed in, or in person, the contents of the notification must include:

The chemical name or identity of any substance involved in the release (what spilled); Whether it is an EHS or CERCLA Hazardous Substance; An estimate of the quantity that was released (how much spilled); The time and duration of the release (how long did it spill--is it still spilling) The medium or media into which the release occurred (did it spill into the water, the air, onto the land, all of the above?); Any known or anticipated acute or chronic health risks associated with the emergency (can it hurt someone?); If necessary, advice regarding medical attention for exposed individuals (how do we treat people who have been exposed to the chemical); Proper precautions to take including evacuation or shelter-in-place; Who to contact for further information.

The Written Follow-Up Report

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:

  1. The 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.

The written follow-up report is something that is available to the public during normal business hours at the LEPC. EPCRA provides another disconnect here in that the fire department is not a required recipient of the written follow-up notice. Again, fire departments will want to make arrangements with the LEPC to have the written follow-up report passed through to them for review and consideration.

The idea of the written follow-up report is to provide this vital information to all parties 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.

The fire departments and the public can use this written follow-up report information to learn about and understand the effects of a significant chemical spill. Other information should always be utilized, including common sense, actual observations, MSDS information, occupational health physicians' opinions, etc., in determining the accuracy of the written follow-up report because there is no absolute assurance that the information in the written follow-up report will be entirely accurate. A business having a chemical spill of "release" proportions have an interest in minimizing the impacts that must be reported on the written follow-up report. 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. If a fire department is concerned about the accuracy of a written follow-up report, the fire department may certainly request the LEPC to add that as an agenda item to the next LEPC meeting, and ask to speak to the issue.

Firefighters have a stake in the accuracy of this information. Firefighters as an occupational group have a very high rate of cancer. Exposure to a variety of hazardous chemicals during response, some of them at high levels, is certainly suspect as contributing to this cancer rate. No other occupation routinely causes a person to be exposed to high levels of different hazardous chemicals. All the more reason for firefighters to be aware of potential chemical hazards at facilities, and all the more reason to use and implement the BOLDER Project software.

http://www.epa.gov/docs/epacfr40/chapt-I.info/subch-J/40P0355.pdf EPCRA Regs TIER two/LEPC Infrastructure

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

There is a tracking system for "minor" spills also, Emergency Response Notification System (ERNS).

Emergency Response Notification System (ERNS)

The Emergency Response Notification System (ERNS) http://www.epa.gov/ERNS/ compiles the data about chemical spills below the "release" threshold amounts and small chemical incidents. This data is also studied.

EPCRA SECTION 311

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. If a facility uses the BOLDER Project software, this will solve that problem, and will satisfy the requirements of Section 311 of EPCRA. EPCRA Section 311 requires that 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"). The reasoning behind this is that Tier Two Reports are not filed until the facility has been in operation at least four months. With the filing date of March 1st of the following year, a potential gap of up to 15 months can occur before chemical and hazard information is provided to the fire department.

There is no point in waiting until the last day of the three months to comply with EPCRA 311. 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. A new facility should be encouraged to use the BOLDER Project software so that the proper information and updates will be provided real-time to the fire department, LEPC, and SERC.

There have been many firefighter deaths and injuries caused by chemicals present at facilities in reportable quantities that were somehow not reported. This has occurred when facilities already reported many chemicals pursuant to EPCRA, but certain "new" chemicals were not reported. It has also occurred at facilities that have had the reportable quantities of chemicals for a long time, but did not report them through oversight or some other reason. Firefighters should be aware that these situations can occur. Using the BOLDER Project software will end the redundancy of reporting and planning at a facility, but it is only as good as the quality of the data provided. A facility needs to take these EPCRA requirements seriously, and fire departments should arrange some verification to assist accuracy and compliance.

EPCRA Reporting Exemptions

Foods, food additives, color additives, drugs, or cosmetics regulated by the Food and Drug Administration (FDA);

Any solid in any manufactured item where exposure to the substance does not occur under normal conditions of use.

If it is a chemical packaged for consumer or household use. (Example--pool chlorine and pool acid for sale at a hardware store or grocery store.)

Chemicals used at research laboratories, hospitals, under technical supervision. (No production or manufacturing lines)

Fertilizers and chemicals used in routine agricultural activities. [Note: EPCRA Section 302 requires that agricultural activities notify the SERC and LEPC when EHS chemicals are present in reportable quantities. The easiest way to accomplish this is for the facility to file a Tier Two Report for these chemicals. It is also a good idea for agricultural operations to prepare an emergency plan. There is nothing to specifically require a Tier Two Report from an agricultural operation, but a Tier Two report satisfies the notification that is required. And filing a Tier Two report and preparing an emergency plan is in everyone's best interest if large amounts of EHS 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. Using the BOLDER Project software will do an even better job of handling these issues.]

Golf courses are not considered agricultural operations, but their owners and operators may mistakenly believe that they are, and believe somehow that they are exempt from Tier Two reporting. 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. Golf courses still have the notification requirements of EPCRA Section 302.