Tier II Reporting
May 6, 2014 - Kestrel Management
In 1984, Bhopal, India experienced what many consider to be the worst chemical disaster in history. A reaction vessel exploded, releasing methyl isocyanate at a Union Carbide subsidiary that was manufacturing pesticides. While the exact impact of the resulting release is still being disputed, thousands of people were killed and tens of thousands more were seriously injured.
This incident created immediate concern in the United States, because a sister plant to the Bhopal facility with similar operations and quantities of chemicals in storage was located in Institute, West Virginia. Could such an incident occur here? A congressional investigation was launched to determine what were the underlying factors that contributed to such widespread damage.
Emergency Planning and Community Right-to-Know Act (EPCRA)
The results of the investigation and congressional hearings led to the creation of the Emergency Planning and Community Right-to-Know Act, otherwise known as EPCRA, in 1986. The Act was promulgated as Title III of the Superfund Amendments and Reauthorization Act (SARA). The purpose of the statue is to require commercial and industrial facilities to provide specific information about the chemical hazards associated with their operations. The Act also fosters the development of chemical emergency response plans by state and local governments, as well as the creation of state emergency response commissions (SERCs) responsible for emergency response action and the appointment of local emergency response committees (LEPCs). The SERCs have since transitioned into the FEMA organization.
One of the outcomes of the congressional hearings was the realization that local governments and response agencies (e.g., local fire departments) understood very little about the chemical hazards posed by facilities in their jurisdictions, for which they could potentially be called upon to respond in an emergency. These agencies had little ability to assure that they were properly prepared in terms of training, equipment, and personnel to respond to a chemical emergency. Similarly, citizens had little to no access to information about chemical hazards and chemical releases that occur in their communities.
To address these gaps, the EPCRA regulations (40 CFR Parts 350-372) establish specific reporting obligations for facilities that store or manage hazardous chemicals. It should be noted that EPCRA does not place any limits on the types of hazardous chemicals or amounts that can be used or stored.
Hazardous Chemical Reporting: Community Right-to-Know
One of the more widely applicable reporting obligations is found in 40 CFR Part 370 – HAZARDOUS CHEMICAL REPORTING: COMMUNITY RIGHT-TO-KNOW. This Section is more commonly known as Tier I and Tier II reporting. While the federal rules allow the use of less detailed Tier I forms to be used for reporting, all states now require the more detailed Tier II or a state-specific form to be completed. The reports must be submitted by March 1 of each year.
If a hazardous chemical, as defined by the Occupational Safety and Health Act, is present at a facility in specific threshold quantities, then the facility is required to submit the required hazardous chemical inventory forms (Tier II or the state-specific equivalent) to the SERC, LEPC, and local fire department. The amounts that trigger reporting are defined as follows:
An amount of a hazardous chemical equal to or greater than the following threshold limits established by the EPA:
- 10,000 lbs (4,500 kg) for hazardous chemicals; or
- lesser of 500 pounds (230 kg) or the threshold planning quantity (TPQ) for extremely hazardous substances (EHS).
The list of chemicals that have been designated as extremely hazardous substances (EHS) under EPCRA and their threshold planning quantities (TPQs) can be found in Appendix A to 40 CFR Part 355. EHS should be reported on safety data sheets (SDS), as well. Certain states have modified versions of the list of EHS and the associated TPQs, so it always necessary to check state requirements, as well. The EPA website provides a quick reference guide to help determine if state requirements differ from the federal.
Tier II Reporting Threshold Determination
Determining which chemicals need to be reported, if any, requires maintaining an inventory of hazardous chemicals, including any EHS, and the amounts stored onsite during the year. For states adopting the federal requirements, the reporting thresholds for materials can fall under two categories: “Extremely Hazardous” and everything else.
These “Extremely Hazardous” chemicals have a TPQ less than 10,000 lbs due to their health hazards. If a chemical stored at the facility does not appear on this list but has an SDS, companies will need to report it only if it is stored in amounts greater than 10,000 lbs. Again, keep in mind, various states and municipalities may have lower reporting thresholds.
Maintaining an inventory and evaluating the materials that are commonly considered hazardous chemicals is not that difficult. However, many other materials onsite can meet the definition of a hazardous material, so an open-minded and thorough review of all materials stored onsite is required. The annual review of materials used to determine thresholds triggers should be documented and retained to support the submission or the fact that a submission is not required.
Some examples of materials that are commonly overlooked include the following:
- If you alter (cut, weld, grind, braze) more than 10,000 lbs of metal stock, your facility must report.
- If you store more than 1,562 gallons of diesel or heating oil, you have exceeded the reporting threshold.
- A facility with 500 lbs of nitric or sulfuric acid must report.
- If you use industrial batteries that contain sulfuric acid, you may have to report (for both sulfuric acid and lead). It only takes a few forklift batteries to trigger the 500-lb sulfuric acid reporting threshold.
- If you have a total of 10,000 lbs (2,500 gallons) of propane for heating or other use, you must report.
- Many pesticides contain EHS and have Tier II reporting thresholds from 1-10,000 lbs.
- Work in process may need to be evaluated for reporting.
Certain materials, such as hazardous waste, are exempt from reporting. Materials defined as “articles” are also exempt from reporting. Per OSHA’s Hazard Communication Standard in 29 CFR 1910.1200(c):
Article means a manufactured item other than a fluid or particle: (i) which is formed to a specific shape or design during manufacture; (ii) which has end use function(s) dependent in whole or in part upon its shape or design during end use; and (iii) which under normal conditions of use does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical (as determined under paragraph (d) of this section), and does not pose a physical hazard or health risk to employees.
Reporting requirements are state-specific. While many states have adopted the use of EPA’s electronic reporting tool (Tier2 Submit), some states still allow the use of the federal paper form, and some have their own state system. Additional reporting may be required by the SERC, LEPC, or local or state fire department. Consult the “State Tier II Reporting Requirements” page on the EPA website for additional state- and location-specific information.
Additional information can be found on the “EPCRA Requirements” page on the EPA website.
Submitted by: Sarah Burton