Simplifying reporting under Sections 311 and 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA) benefits both reporters and state and local governments, as well local fire departments. Unlike reporting under other environmental statutes where problems that slow the reporting or processing of data are generally not seen as an immediate detriment to the protection of human health and the environment, one key goal of Sections 311 and 312 is to provide emergency responders with accurate, current information about the identify, quantity, and location of hazardous chemicals at a site in the event of a fire or other emergency. The provision of this critical information should be an efficient process and not complicated by excess paperwork or even the absence of information because either the reporters or the government did not understand their requirements.

With that in mind, EPA from time to time issues regulations and guidance intended to streamline EPCRA reporting. This was the case in a June 1998 action in which the Agency both proposed four regulatory changes to EPCRA reporting provisions and invited comment on a number of nonregulatory reporting options to simplify or reduce the workload for reporting facilities, as well as state and local bodies and local fire departments. Two of the four proposed regulatory revisions have since been made final. In a July 2010 Federal Register “guidance and interpretation,” EPA discusses the nonregulatory options and the comments they prompted and makes recommendations accordingly. The notice also includes an interpretation of the term as soon as practicable as it applies to submitting follow-up emergency notices after a release. A second interpretation on the scope of the EPCRA hazardous chemical exemption for solids is also provided.

EPA Recommendations

Use of UST forms to fulfill requirements for Tier I information under Section 312. At the time of the June 1998 proposal, many states were accepting the Tier I inventory form. To provide flexibility, the draft guidance offered states the option to allow facilities to use the UST form required under RCRA to comply with the Section 312 reporting requirements typically met with the Tier I form. This option reduced the reporting burden for those facilities, mainly retail gas stations, which have only USTs containing hazardous chemicals on-site. EPA decided not to recommend use of the UST form to comply with Section 312 for two reasons. First, in February 1999, EPA raised the reporting threshold for gasoline and diesel fuel stored at retail gas stations, effectively removing most stations from reporting obligations. Second, since all states now require the Tier II form, use of the UST form (or the Tier I form) is not seen as beneficial for state agencies.

Partnership programs. To streamline the submission process, EPA suggested in the draft guidance that state emergency response commissions (SERCs), local emergency planning committees (LEPCs), and fire departments could partner and agree that one agency would receive the Sections 311 and 312 reporting information and make it available electronically to the others. EPA now says that many states have developed their own electronic reporting systems or are using the EPA Tier II reporting program (Tier2Submit). One concern raised early on by commenters was that LEPCs and fire departments may not have online access that would allow rapid sharing of inventory information. EPA responds that if LEPCs and/or fire departments do not have the capability to access the information online, the SERC could provide the information to these entities on CD or in hard copy.

Also, the inventory information must be in the hands of the three government parties by March 1 of each year. This means that states may need to revise their right-to-know program regulations to require facilities to submit the Tier II information before March 1 to allow enough time for processing and access by LEPCs and fire departments by March 1.

Electronic submittal. Over the years, states have reported that their biggest burden is handling thousands of paper Tier I/II form submissions. Some states requested that they be allowed to create an electronic reporting format for facilities to use to comply with EPCRA Section 312. Electronic reporting reduces the burden on facilities since they need to enter most of their information on the Tier II form only in the first year and then revise it as needed in subsequent years. Today only a few states accept paper Tier II reports, although some facilities still do not have the capability to submit electronically. EPA encourages states and local agencies to allow these facilities to submit paper Tier II forms.

EPA also informs agencies that the certification signature provided by the facility owner/operator may be provided on paper (a “wet” signature) or by electronic means according to requirements established by the state. EPA emphasizes that states have the flexibility to use any system for collecting chemical inventory information under Section 312 and to establish the means to ensure the information is true, accurate, and complete so that they may effectively and efficiently manage chemical risks and provide information to the public. Facilities that submit the hazardous chemical inventory form and certification online do not need to submit a certification statement on paper unless the state and local agencies require it, says EPA.

Electronic Access to MSDSs. Some facilities maintain an electronic database of material safety data sheets (MSDSs) for the hazardous chemicals on their site. EPA requested comments on whether a facility should be allowed to give the SERC, LEPC, and the local fire department electronic access to its MSDS database instead of actually submitting the MSDSs to the three entities as required under Section 311. For a variety of reasons (e.g., access may not be possible during power outages and possible violation of the statutory requirements), EPA did not recommend this approach.

Sections 311 and 312 overlap. Section 311 of EPCRA and its implementing regulations require the submission of MSDSs or a list of hazardous chemicals to the SERC, LEPC, and fire department within 3 months after a facility becomes subject to the reporting requirements or within 3 months after discovery of significant new information concerning a hazardous chemical that has already been reported, or within 30 days of a request from the SERC, LEPC, or fire department. Section 312 of EPCRA requires a submission of a Tier I or Tier II form to these three entities by March 1 of each year. Since the Section 312 report is due by March 1 for information from the previous calendar year, some facilities may submit their Tier I/II form between January 1 and March 1.

Therefore, Section 312 could be used to meet the Section 311 reporting requirements for facilities that become subject to reporting under Section 311 or that discover significant new information concerning a hazardous chemical between October 1 and December 31 of any given calendar year. EPA supports this approach but emphasizes that states that allow it will need to require facilities to submit a Section 312 report 3 months after acquiring a new chemical to be in compliance with the Section 311 reporting requirements.

Interpretations

Federal regulations require that any changes relevant to emergency planning and any information requested by the LEPC that is necessary for developing or implementing the local emergency plan be submitted to the LEPC within 30 days after the change is made.

Regulations also require that a written follow-up emergency notice be provided to the SERC and LEPC as soon as practicable after a release. No specific time frame in the regulations illuminates the phrase as soon as practicable. Based on comments, EPA decided that 30 days should also be sufficient to submit the follow-up notice. The Agency indicated that it would revise its enforcement response policy to reflect this change. However, states may implement a more stringent time frame if they so choose.

Section 312 provides an exemption from reporting for any substance present as a solid in any manufactured item as long as exposure does not occur under normal use. However, historically, EPA asserted that if portions of a solid metal in a manufactured item are altered (e.g., welding steel) so that exposure can occur, all the solid metal should be included and counted to determine the quantity of hazardous chemical present for threshold purposes.

For example, if there are 10,000 pounds (lb) of steel undergoing welding at a facility at any one time, then 10,000 lb would need to be counted toward the quantity for threshold determination even if only a portion of the steel is welded. EPA believes this interpretation occasionally requires reporting of information that is unnecessary for emergency planning and community right-to-know purposes. Under the new interpretation, facilities would have to include and count only the amount of fume or dust emitted or released from a manufactured solid that is being modified to determine whether the EPCRA Sections 311 and 312 reporting thresholds have been reached.

As EPA repeatedly emphasizes throughout its guidance document, the states have significant latitude to implement Sections 311 and 312 in ways that go above and beyond the federal requirements.

Therefore, we also emphasize the importance of checking your compliance obligations with the agency in your state overseeing EPCRA reporting.