Energy and Environment Monitor
After 10 years, on November 3, 2008 (73 FR 65451-65484) EPA finalized changes to the Emergency Planning Notification, Emergency Release Notification and Hazardous Chemical Reporting regulations that were proposed on June 8, 1998 (63 FR 31268). The final rule is effective on December 3, 2008.
Title III of SARA (EPCRA) establishes authorities for emergency planning and preparedness, emergency release notification reporting, community right-to-know reporting, and toxic chemical release reporting. The implementing regulations for emergency planning, emergency release notification and the chemicals subject to these regulations (Extremely Hazardous Substances) are codified in 40 CFR Part 355. The implementing regulations for community right-to-know reporting (or hazardous chemical reporting) are codified in 40 CFR part 370.
The November 3, 2008 final rule:
- Finalizes some of the proposed revisions on applying threshold quantity and the reporting of mixtures under EPCRA sections 311 and 312;
- Removes the Tier I and II inventory forms and instructions from the CFR, as well as making some minor changes to the forms and instructions; and
- Codifies certain existing policies and interpretations in 40 CFR parts 355 and 370.
- Rewrites the 40 CFR Parts 355 and 370 regulation in plainer language renumbering and re-organizing the sections and adds tables for clarification of certain reporting requirements.
The most important change is the first to the provisions regarding mixtures of chemicals when determining if threshold quantities are met for regulatory applicability and the reporting requirements. For facilities that have only pure chemicals on site, determining if the total amount of a hazardous chemical is at or above the reporting threshold is straightforward. However, in many cases, facilities have mixtures that contain hazardous chemical components, including both extremely hazardous substances (EHSs) and hazardous chemical components which are not extremely hazardous substances (non-EHSs.)
Three changes regarding mixtures were made by this final rule:
(1) Adding a provision to clarify that, when determining the total quantity of an extremely hazardous substance (EHS) present at a facility, the quantity of that substance present in a mixture must be included even if the total quantity of that particular mixture is also being counted toward the threshold level for that mixture;
(2) Adding a provision for applying the threshold quantity to a hazardous chemical component in a mixture when that hazardous chemical component is not an EHS; and
(3) Adding a provision for applying the threshold quantity to a non-EHS hazardous chemical when that chemical is present both by itself and as a component in a mixture.
(1) The prior rule provided that in determining whether a reporting threshold for an EHS has been met or exceeded, the owner or operator of a facility shall aggregate the quantity of the EHS present as a component in all mixtures at the facility and all other quantities of the EHS present at the facility.
The Agency amended the regulations to clarify that when determining the total quantity of an EHS present at a facility, the quantity present in a mixture must be included even if the total quantity of that particular mixture is also being counted toward the threshold level for that mixture. For example, a facility has 15,000 pounds of a hazardous chemical mixture which contains 6,000 pounds of sulfuric acid, an EHS. Although the facility may report this mixture on the Tier II form as a mixture since it is above the reporting threshold of 10,000 pounds for a hazardous chemical, the facility must also include the amount of the sulfuric acid in this mixture when determining the total quantity of the sulfuric acid present throughout the facility.
The argument for this change to include the specific quantity of the EHS was the need to assure that emergency responders do not unknowingly encounter a mixture containing an EHS component. The argument against the change was that EHS would be “double-counted”, increasing the reporting burden on large facilities. Additionally, the EHS component of a mixture often does not exhibit the same hazardous properties as it does in its pure form, especially when present in a mixture at low concentrations.
EPA agreed with the importance of specific EHS quantities in mixtures to enable proper community planning for emergencies involving EHSs, and to protect emergency responders finding that the additional reporting burden was outweighed by the need to protect emergency responders. EPA also agreed that a hazardous component may not exhibit the same hazardous properties of the pure chemical when present in a mixture at low concentrations. For this reason, EPA established a de minimis limit (1 percent for hazardous chemicals and 0.1 percent for carcinogens) below which the component in a mixture need not be counted toward the threshold quantity.
(2) The second revision is the addition of a provision to determine if the reporting threshold has been met or exceeded for mixtures that contain non-EHS hazardous chemical components. Flexibility is required to accommodate the situation when a site may only have MSDSs for mixtures. The facility has the option to either add up all the amounts of each non-EHS hazardous chemical component present throughout the facility or consider the total quantity of the mixture to determine whether the total quantity equals or exceeds the reporting threshold.
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. The table in §370.14(a) states these options. In some cases, the OSHA regulations may require a facility to prepare or have available an MSDS for the mixture and/or its hazardous chemical components, so EPA added a provision for consistency in MSDS (§ 311) and inventory reporting (§312). This means that if the facility owner or operator decides to report a mixture under §311 by submitting an MSDS for the mixture, then the facility owner or operator should also report that mixture under §312 and not report its hazardous chemical components, unless the facility can show that it is not practicable to do so. EPA wants the MSDS information to correspond with the inventory information to ensure consistency in the qualitative and quantitative information received regarding the hazards of chemicals stored on site.
The new rule removes the Tier I and Tier II inventory forms and instructions from the Code of Federal Regulations, in order to make it easier for the Agency to make minor changes in the forms without having to go through the entire rulemaking process. The Tier I and Tier II forms and instructions are available on the EPA’s web site at http://www.epa.gov/emergencies.
Even with this recent change to clarify the regulations, EPCRA reporting is complicated; you may contact Barbara D. Little at (304) 340-1355 or blittle@jacksonkelly with questions.
This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.
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