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Tier II Reporting

The Emergency Planning and Community Right to Know Act of 1986 was created to ensure that communities receive the information that they need about potential hazardous chemical exposure.

Under Section 312 of EPCRA (EPCRA definition: Emergency Planning and Community Right to Know Act of 1986), submission of the Tier II form is required when working with hazardous chemicals. This form, known as the Emergency and Hazardous Chemical Inventory Forms, are used to notify state officials, local officials, and the general public regarding potential hazards. This is separate from EPCRA Section 313, Toxic Release Inventory (EPCRA TRI reporting). EPCRA Section 302 along with EPCRA Section 312 outline the entities that need to be notified regarding these chemicals. EPCRA 311 requires companies to submit Safety Data Sheets for all products with physical and health hazards.

Understandably, it can be difficult to track Tier II reporting, chemicals, and potential hazards without a system. EHS professionals need to be aware of which chemicals are governed under the EPCRA and who needs to be notified when these chemicals are being used. Notifications also need to be made by certain deadlines to be valid, so the company will also need to track the deadlines for each form.

And because many entities need to be notified at once, each individual notification has to be tracked to ensure that it has been accurately filled out and received. Tier II reporting is only one layer of reporting that environmental health and safety professionals need to comply with.

While the EPCRA may be complicated, it's also critical for sustained health. Companies that are finding it difficult to establish their Tier II reporting can apply for EPCRA grants, which can then be used to improve upon processes, control, and tracking.

  1. The EPCRA contains a number of sections that govern which chemicals are controlled and what the reporting standards are.
  2. The Toxic Release Inventory (TRI) reporting also requires that hazardous chemicals be reported when released.

EPCRA Section 313

There are a number of EPCRA sections controlling different things. EPCRA Section 313 requires facilities to report both routine and accidental chemical releases.

The EPCRA is quite complex, and understandably so — it governs some of the most important environmental protections related to business usage of chemicals. Prior to the EPCRA, companies may not need to notify individuals of spills in their area, or may not need to connect with all local, state, and Indian Nation governments regarding these spills. So, while it's complex, it's also important to understand.

Let's take a look at some of the other EPCRA sections. EPCRA Section 304 is the Title III of the Superfund Amendments and Reauthorization Act. 304 governs release notification requirements. EPCRA 311 requires that facilities submit SDSs (Safety Data Sheets) for extremely hazardous substances present on-site or above the reporting threshold; they need to report to the state emergency response commission (SERC), the local emergency planning committee (LEPC), and the local fire department.  EPCRA section 302 extremely hazardous substances requires similar reporting.

Meanwhile, EPCRA Section 313 requires facilities to report routine and accidental chemical releases. The EPCRA Section 313 list includes a total of 767 chemicals which require notification. Of course, that means that companies need to be on the ball about their regulations, and need to be thorough about tracking any releases, whether they are intentional or not. Consider these EPCRA FAQs:

  • Who is governed under Section 313 reporting? Companies are required to complete this reporting if they have more than 10 full-time employees (or the equivalent), are covered under a NAICS code, and exceed any one threshold for manufacturing, importing, processing, or using chemicals. These requirements are outlined in Section 372.65.
  • Is my company covered under the code? The easiest way to find out whether your company is covered under the code is to find out the code for your industry and to look up whether it shows up inside of the SIC code for Section 313.
  • Are trucking companies covered by Section 313? In general, transportation companies are not required to report, because they are only transporting the chemicals rather than using, manufacturing, or otherwise managing it.
  • What counts as 10 full-time employees? When it comes to part-time employees, hours worked are added up alongside full-time employees. Thus, if enough part-time employees worked to cover the hours of 10 full-time employees, it will still count as 10 full-time employees.
  • Do contractors count as employees? A contractor's hours will count towards the full-time employee count for a business as long as they are engaged in work for the business that is managing or using the given chemicals.

Most companies working directly with hazardous or dangerous chemicals are going to need to engage in some form of reporting. An EHS professional can help.

  1. The entirety of the EPCRA needs to be understood by a company, including section 313.
  2. Section 313 outlines who is responsible for reporting, and whether there are companies that are excluded (such as trucking companies, and companies with few employees).
  3. Understanding all the EPCRA sections can take work, but this is the work that an EHS professional will need to do — often with the help of software.

How to Determine Reportable Quantity

Not only do businesses need to calculate their work hours, but also the reportable quantities of their chemicals.

Not every usage or release of a chemical is a reportable quantity. It all depends on the type of chemical.

First, the CERCLA (Comprehensive Emergency Response, Compensation, and Liability Act) definition makes sure that releases are reported and cleaned up properly. The CERCLA release definition also outlines which releases are considered important enough to report. CERCLA section 103 can cover anything from spilling, leaking, pumping, pouring, emitting, and so forth, and EPCRA amendments have been adjusted to count for different chemicals and requirements. But how does an organization determine whether its release is of a reportable quantity?

CERCLA release reporting has an initial reportable quantity as a pound of Superfund hazardous substances. But other substances will have a variety of reportable quantities depending on how hazardous the material is. Because of this, it's important that a professional look up reportable quantities whenever any type of release occurs, and know what the required quantities are for the chemicals that are there. The relationship between Bhopal and EPCRA is important here; EPCRA was established to prevent issues such as the Bhopal disaster in India, during which many people were killed by a release of pesticide. 

Of course, businesses also need to be able to identify the amount of materials released on their end, which should be done through strict internal controls. Companies should always know exactly how much of any given material they are working with and transporting, so they can also quantify how much may have been released or lost in the event of a disaster. Reporting is a last resort: It's always better for companies to take actionable steps towards reducing the chances for a release.

Under EPCRA and CERCLA, regulations hope to ensure that companies are not only tracking and reporting their hazardous chemicals, but also reporting very quickly if they have an issue with their hazardous chemicals. Companies should know in advance how they should determine a reportable quantity quickly when a release does occur, so that time is not wasted on the reporting and the recovery. Companies should also have a comprehensive, detailed plan for when a release occurs, much like any disaster preparedness plan. This will prevent time from potentially being wasted in the event that an issue does arise.

Because a release can include things such as discharging, leaching, and leaking, companies also need to make sure that they properly maintain their equipment, and that they are able to swiftly identify issues that could be seemingly minor, such as slow leaks.

  1. The reportable quantity of a chemical depends on the chemical itself, as there are some that are more toxic than others.
  2. It's important that companies not only understand their reportable quantities but also know exactly what they will do when faced with a release.
  3. Both the EPCRA and CERCLA are regulations that encourage companies to track and report their hazardous chemicals.

EPCRA Facts

EPCRA has four provisions. The EPCRA provisions are: emergency planning, emergency release notification, hazardous chemical storage reporting requirements, and toxic chemical release inventory.

EPCRA's provisions are meant to organize the principle ideas behind EPCRA. Together, these work together to create safer environments, for both employees and those who are simply around a work site. The EPCRA is meant to be a comprehensive regulation that ensures that businesses are required to conscientiously report their work with chemical storage, and potential emergency releases. The EPCRA also ensures that companies are prepared in the event that a release does occur.

EPCRA chemicals are intended to make it easier for companies to maintain their compliance, which requires that they do report the presence of hazardous materials that are being worked with as well as any releases. There are also EPCRA 302 exemptions and the EPCRA Section 302 chemical list. Combine this with the EPCRA Section 311 exemptions, the EPCRA Section 313 Form R, and general EPCRA Section 313 guidance, and it becomes understandable that many businesses need professionals to get through the process. Usually experts in EPCRA sections will be consulted regarding working with hazardous chemicals.

In addition to the EPCRA 313, there's also EPCRA Section 327, which outlines the exempt hazardous materials. The EPA list of lists 2019 is a consolidated list of list for emergency planning and reporting, which can be incredibly important for businesses trying to improve their processes. There are also EPCRA grants; an EPCRA grant can go towards maintaining better compliance. For SMBs, in particular, it can be very difficult to follow these extensive codes.

Businesses can use compliance platforms if they are concerned about maintaining their compliance with EPCRA. Compliance platforms will help companies track their deadlines and requirements, as well as easily searching through things such as lists of chemicals and reporting requirements. Because the EPCRA requires contact with federal and local governments, as well as Indian nations, it can be a long list of forms that need to be filled out and received before the company is able to fully achieve compliance.

However, companies do have some leeway, insofar as they can choose to file out Tier I or Tier II forms. The better prepared companies are for potential releases and disasters, the less likely they are to run into issues of code compliance. And companies that are too small (that have fewer than 10 full-time employees or their part-time equivalents) are not likely to have to do reporting at all. 

  1. Businesses need to be proactive about their chemical controls, developing plans and contingencies before disasters occur.
  2. The EPA list of lists 2019 can help businesses determine what reporting they need to do.
  3. When disasters do occur, businesses need to react swiftly to notify all the individuals that need to be notified, and to contain the release thoroughly.
  4. Compliance platforms can aid businesses in maintaining compliance with EPCRA and other associated environmental and safety regulations.

If you're interested in how Encamp helps EHS managers deliver consistent processes and first-rate compliance programs, learn more at our free webinar.