It is that time of year again. Every March 1, owners and operators of facilities subject to Section 312 of the Emergency Planning and Community Right to Know Act (EPCRA) must submit Tier I or Tier II emergency and hazardous chemical inventory forms to the appropriate local emergency planning committee, state emergency response commission, and fire department with jurisdiction over their facility.

While this requirement has existed since 1988, it continues to catch many off guard. Examples of enforcement action taken in recent years by the U.S. Environmental Protection Agency (EPA) for violation of EPCRA Section 312 include the following:

  • Telecommunications companies storing or using lead-acid batteries and fuel for generators;
  • Retailers and distribution centers operating forklifts using lead-acid batteries;
  • Food processing and pharmaceutical companies storing or using hazardous chemicals, or storing or using lead-acid batteries or fuel for generators;
  • Business offices and data centers storing or using lead-acid batteries and fuel for generators;
  • Farms storing pesticides, fuel, ammonia, nitric acid or similar chemicals; and,
  • Energy companies storing oil and gas, or storing or using other hazardous chemicals such as lube oil, sulfuric acid or ethylene glycol.  

EPCRA Section 312 applies to owners and operators of facilities required to prepare or have available material safety data sheets (MSDSs) for a hazardous chemical under the Occupational Safety and Health Act of 1970 (OSHA). At each such facility, an owner or operator must prepare and submit an inventory form providing information for each hazardous chemical present at the facility during the preceding year in excess of certain thresholds.

EPA has set these thresholds at 10,000 pounds for hazardous chemicals, such as lead, and gasoline and diesel stored at non-retail gas station locations; and at 500 pounds or less for extremely hazardous chemicals, such as sulfuric acid, nitric acid or ammonia. Many facilities with backup battery power systems or battery charging stations, for instance, have enough lead-acid batteries to easily trigger the 500 pound threshold for sulfuric acid. Similarly, many facilities with diesel generators for backup power have enough diesel fuel in above-ground or self-contained tanks to trigger the 10,000 pound threshold for diesel fuel. Under Section 311 of EPCRA, these owners and operators are also required to submit their MSDSs to the appropriate local emergency planning committee, state emergency response commission, and fire department with jurisdiction over their facility within three months after triggering the OSHA requirement to have an MSDS for a hazardous chemical.

EPA is entitled to seek up to five years of penalties at $37,500 per day per violation where it identifies violations of EPCRA Sections 311 and 312. In cases where EPA identifies violations through its own investigation and pursues enforcement, settlements commonly include penalties ranging in the tens or hundreds of thousands of dollars. As a result, many owners and operators seek to mitigate their enforcement risk by auditing their facilities for EPCRA compliance and voluntarily disclosing potential non-compliance to EPA under EPA’s Audit Policy, which allows for up to 100% mitigation of the gravity-based component of civil penalties. This approach has been very common in the telecommunications industry where EPA has waived over $45 million in gravity-based penalties for more than 25 telecommunications companies who have made voluntary disclosures since 1998.  

Owners and operators should also be careful to identify analogous state, tribal and local emergency and hazardous chemical inventory form filing requirements. While these programs often have requirements very similar to EPCRA Section 312, they may have substantially lower thresholds for hazardous and extremely hazardous chemicals, and may also have a filing fee as high as a few hundred dollars per year.