EPCRA and e-Disclosure: Be Proactive with Tier II and TRI violations
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August 27, 2018
EPCRA and e-Disclosure: Be Proactive with Tier II and TRI violations
By Timothy P Fagan, Senior Legal Editor - EHS

The EPA recently found a company in violation of the Emergency Planning and Community Right-to-Know Act’s (EPCRA) hazardous chemical inventory (also known as Tier II) and Toxics Release Inventory (TRI) reporting requirements and levied a penalty of over $160,000.  Are you confident in your compliance with EPCRA reporting requirements?  Now might be a good time to conduct an audit of your reporting procedures to ensure you don’t end up on the wrong end of an EPA penalty assessment.

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What could go wrong?

EPCRA’s Tier II and TRI reports typically require a significant amount of time and effort to prepare.  Determining what needs to be included in the report, gathering all of the necessary data to complete the report, and filing the report requires man-hours, good organizational skills, and comprehensive recordkeeping.   So what could possibly go wrong?

  • Did you account for all of the chemicals and quantities present at the facility throughout the year?   Are you sure you completed a Form R for each of the chemicals at your facility subject to TRI reporting?  Did you include the chemical that was only on-site for 1 day in your Tier II report?
  • Did you submit copies of your Tier II report to the State Emergency Response Commission (SERC), the Local Emergency Planning Committee (LEPC), and the local fire department in the requested format? There are many different submission formats being used: various online tools, via e-mail, and by mailing hard copy.  Often submission to SERC, the LEPC, and the fire department may require utilizing two or more submission formats. 
  • Did you account for recent changes in the reporting requirements?  For example, hexabromocyclododecane (HBCD) was required to be included in the most recent TRI report for the first time, and did you consider that certain chemicals had different TRI reporting thresholds as a result of being recently classified as carcinogens by OSHA.   

There is a lot to keep track of, in addition to all of the other work on your plate, so it is understandable that things may inadvertently slip through the cracks.

Get out in front of it

The EPA recognizes that not all of us are perfect with our EPCRA reporting, so the agency has established an e-disclosure system that allows facilities to self-report certain EPCRA violations and make corrections without being fined.  The e-disclosure portal can be accessed through the EPA’s Central Data Exchange (CDX).

The e-disclosure system establishes two categories of violation:

  • Category 1: includes EPCRA violations that meet all the conditions of the EPA’s Audit Policy or the EPA’s Small Business Compliance Policy, except for violations of EPCRA Section 304 governing emergency release notifications, EPCRA violations with a significant economic benefit, and violations of Section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
  • Category 2: includes EPCRA and CERCLA violations not included in Category 1, all non-EPCRA violations, and all violations where the discloser can certify compliance with all the conditions of the EPA’s Audit Policy, except systematic discovery.

Facilities disclosing a Category 1 violation will receive an automatic electronic notice of determination confirming the violations are resolved with no penalty.  Disclosures of Category 2 violations will be met with an automatic electronic acknowledgment letter confirming the EPA’s receipt of the disclosure. However, eligibility for penalty mitigation will be determined by the EPA after it reviews the disclosure.  In both instances, after the violation is corrected, the discloser must certify that the violations have been corrected via the e-disclosure portal.

If your facility maintains its due diligence and conducts regular voluntary compliance audits, it is likely that any Tier II or TRI reporting violations will be classified as a Category 1 violation resulting in no penalty.  However, even if you cannot satisfy the systematic discovery requirement of the EPA’s Audit Policy, it is always better to be proactive in reporting violations and taking actions to correct noncompliance, rather than waiting for the EPA to discover your violations.  The latter is more likely to result in a fine.
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