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EPA Issues Final Rule Amending EPCRA Regulations

Beveridge & Diamond, P.C. - Client Alert, March 6, 2009

On November 3, 2008, the U.S. Environmental Protection Agency (“EPA”) published final amendments to the Emergency Planning and Community Right-to-Know Act (“EPCRA”) regulations set out in 40 C.F.R. Parts 355 and 370.  73 Fed. Reg. 65452.  This action is the culmination of ten years of EPA deliberation over the changes that it discussed in the section of the preamble to the 1998 proposed rule entitled “Other Regulatory Changes.”  63 Fed. Reg. 31268 (June 8, 1998).  In the amendments, EPA has made minor changes to the emergency planning and emergency release notification sections in 40 C.F.R. Part 355.  The amendments to the hazardous chemical reporting requirements in 40 C.F.R. Part 370 make substantive clarifications to previously adopted EPA policy.  Entities subject to EPCRA §§ 311 and 312, 42 U.S.C. §§ 11021 and 11022, should note that this action finalizes: (1) the reporting requirements for hazardous chemicals in mixtures; and (2) the requirements for Tier 1 and Tier II forms.  The changes became effective on December 3, 2008.  The following paragraphs provide a brief overview of these changes.

Reporting Hazardous Chemicals in Mixtures Under EPCRA Sections 311 and 312

  • When determining whether the threshold quantity of an extremely hazardous substance (“EHS”) has been met, facilities must aggregate the total quantity of that EHS present in its pure form as well as in any mixture.  Facilities were required to aggregate previously under EPCRA’s requirements for EHS threshold determinations.  This amendment only clarifies that an EHS quantity in a mixture must be counted even if the total quantity of the mixture is also being counted towards the threshold level for that mixture.  Once it is determined that the reporting threshold is met, facilities may report the EHS component or the mixture itself.  If reporting on the mixture itself, facilities must indicate that the mixture contains an EHS and name the EHS.  This represents a change from the previous EPCRA chemical inventory reporting requirements for mixtures containing EHS, which did not specify that EHS in a reported mixture be identified and named.  See 55 Fed. Reg. 30646 (July 26, 1990).
  • For hazardous chemicals that are mixtures and do not contain any EHS, facilities have an option when determining whether the threshold quantity is present:  (1) add together the quantity present in its pure form and as a component in all mixtures (even if the mixture is also being reported as a hazardous chemical); or (2) consider the total quantity of each mixture separately.  This affirms existing EPA policy that facilities are not required to aggregate when determining whether there is a reportable quantity of a non-EHS.  Once it is determined that the reporting threshold is met or exceeded for either the non-EHS hazardous chemical component or the mixture, the facility may report the quantity of non-EHS hazardous chemical component or the mixture itself.  This rule formalizes EPA practice contained in the preamble to the July 26, 1990 final rule.  See 55 Fed. Reg. 30646.
  • The amendments have not changed the de minimis limit (a concentration of 1% for hazardous chemicals and 0.1% for carcinogens) below which a hazardous component in a mixture need not be counted toward the threshold quantity.  See 52 Fed. Reg. 38344 (Oct. 15, 1987).
  • A table is provided in 40 C.F.R. § 370.14(a) to clarify the requirements and/or provide options to determine if reporting thresholds have been met or exceeded for mixtures containing EHS and non-EHS hazardous chemical components.  The table also shows how to report mixtures that contain EHS and non-EHS hazardous chemical components.

Tier I and Tier II Forms

  • The Tier I and Tier II forms and their instructions have been removed from the Code of Federal Regulations (“CFR”).  They are now available on EPA’s website at http://www.epa.gov/emergencies/content/epcra/tier2.htm#inst.  However, a description of Tier I and Tier II informational requirements may be found at revised 40 C.F.R. §§ 370.41 and 370.42.
  • Potential penalties for noncompliance with the hazardous chemical reporting requirements have also been removed from the CFR.  They are provided for at EPCRA § 325, 42 U.S.C. § 11045(c), as periodically updated by the Civil Monetary Penalty Inflation Adjustment regulations at 40 C.F.R. Part 19.  The most recent update, effective January 12, 2009, provides for a maximum penalties of $37,000 per violation for EPCRA §§ 312 and 313, and $16,000 per violation for §§ 311, 322(a)(2), and 323(b).  74 Fed. Reg. 626 (Jan. 7, 2009).
  • Facilities are now required to report their North American Industry Classification System (“NAICS”) code (replacing the Standard Industrial Classification (“SIC”) codes) on their Tier I or Tier II forms.
  • Also, the chemical or common name of the chemical as provided on the material safety data sheet must be listed on a Tier II form.
  • Finally, EPA encourages facilities to contact their States to determine whether any additional requirements or formats are required by their States.

For more information, contact Mark Duvall, 202-789-6090, mduvall@bdlaw.com.  This article was prepared with the assistance of Bina Reddy.

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