EPCRA 101 - Tips for Successfully Navigating EPCRA Reporting Requirements

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Welcome to our second edition of PHE Pulse, a newsletter that we hope you will find interesting and useful in today's every-changing business and regulatory climate.  Through PHE Pulse, we hope to provide our clients and colleagues with meaningful information and insights relevant to the environmental profession.

EPCRA 101 - Tips for Successfully Navigating EPCRA Reporting Requirements

The Emergency Planning and Community Right-to-Know Act (EPCRA) requires most federal and industrial/commercial facilities to report information related to their use of hazardous materials.  For federal facilities, Executive Order (EO) 12856, Federal Compliance with Right-To-Know Laws and Pollution Prevention Requirements, first established EPCRA reporting requirements, which were later emphasized in EO 13693, Planning for Federal Sustainability in the Next Decade.

This article reviews EPCRA reporting requirements, summarizes some of the hazardous materials that are commonly reported and those that are sometimes overlooked, and provides tips and insights to help facilities remain in compliance.

Is EPCRA applicable to my facility? 

Most likely, yes!  Any facility that stores hazardous chemicals in quantities that exceed reporting thresholds (more on this later) is required to file Tier II reports.  Hazardous chemicals are defined as substances for which a facility must maintain a safety data sheet (SDS) under the OSHA Hazard Communication Standard, which establishes criteria used for identifying hazardous chemicals. Additional reporting requirements may apply to facilities that use certain toxic chemicals (see discussion on Toxic Release Inventory reporting below). 

What is Tier II reporting?

Section 312 of EPCRA requires facilities to annually identify all hazardous materials and extremely hazardous substances (EHSs) that exceed established reporting thresholds, and report the maximum quantity stored on site during the year, storage locations, and container types.  The reporting threshold is 10,000 pounds for most materials, and 500 pounds (or the threshold planning quantity) for listed EHSs.  You can find the reporting thresholds in EPA's List of Lists.  Some states have lower reporting thresholds, so be sure to check your state's requirements.  Reporting must be completed using the Tier II or state-equivalent form on or before 1 March of each year.  

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What are common hazardous materials reported on Tier II forms and where do you gather your information?

  • Fuels stored in aboveground and underground tanks.  Check your facility's Spill Prevention, Control, and Countermeasure (SPCC) plan to estimate onsite fuel storage capacity.  Note that each fuel (e.g. diesel, gasoline, or jet fuel) must be reported separately.  As a rule of thumb, 1,200 gallons is approximately 10,000 pounds.  
  • Sulfuric acid in lead-acid batteries found in uninterruptible power supply systems, electric vehicles, and emergency generators.  Sulfuric acid is an EHS with a 500-pound reporting threshold and typically comprises about 20% of the battery weight (refer to the battery SDS, if available, for exact quantities).  Facilities storing many lead-acid batteries on site may also need to report lead, which has a 10,000-pound reporting threshold and typically makes up 70% of battery weight.  Check with IT, Facilities Maintenance, and Motor Pool personnel to determine the number and size of batteries.
  • Chlorine gas and other chemicals used for water treatment.  Other common treatment chemicals include sodium hypochlorite and sodium metabisulfite.
  • Antifreeze and Petroleum, Oil, and Lubricants (POLs) associated with vehicle maintenance (e.g., used oil).  Facilities with industrial activities may be required to report other hazardous materials as well.  Check hazardous material inventory reports, if available, and applicable SDSs to identify any reportable hazardous materials at your facility.

In addition to the data sources mentioned above, facility walk-throughs are valuable for verifying data obtained from other sources and identify any hazardous materials that were not captured elsewhere.

What types of products are exempt from Tier II reporting?

There are several categories of products that are exempt from Tier II Reporting, although they may not be exempt from other EPCRA reporting requirements.  Common Tier II exemptions are listed below.

  • Products that are packaged for distribution and use by the general public are not required to be reported.  This exemption typically applies to products such as batteries (car batteries and smaller), paints (typically 5-gallon containers and smaller), lubricants, coolants, insecticides, fire extinguishers, and cleaning compounds.  When these types of products are stored in bulk containers, such as 55-gallon drums, they no longer qualify for the exemption. 
  • Substances present as a solid manufactured article, such that exposure to the substance does not occur under conditions of normal use, are exempted from Tier II reporting.  This exemption typically applies to small arms ammunition, sealed capacitors, and dry-cell batteries.
  • Chemicals that are used at a research laboratory or medical facility are exempt from Tier II reporting requirements.  This typically includes compressed gases used for medical purposes and hazardous chemicals that support medical/laboratory research and diagnosis.
  • Hazardous waste regulated under the Resource Conservation and Recovery Act (RCRA) is exempt from Tier II reporting requirements.  This includes waste stored at 90-day storage sites and satellite accumulation points.  Note that used oil or used antifreeze that will be recycled is not considered a hazardous waste and does not meet this exemption.

What is Toxics Release Inventory (aka TRI or Form R) Reporting?

Section 313 of EPCRA requires some facilities to report the quantities of listed toxic chemicals that are released to air, land, or water, or are shipped off site for disposal, treatment, or recycling.  TRI reporting applies to federal facilities and to commercial/industrial facilities that fall within specific North American Industry Classification System, or NAICS, codes.  Facilities that use any listed toxic chemical or chemical category in amounts exceeding the reporting threshold must report releases and offsite transfers of the chemical.  For facilities that do not manufacture or process chemicals, the 10,000-pound "otherwise-used threshold" is most commonly applicable.  Reporting thresholds are significantly lower for certain persistent, bioaccumulative, and toxic (PBT) chemicals (either 10 or 100 pounds for most PBTs; 0.1 grams for dioxins).  TRI reports are due 1 July each year.  

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What are some chemicals commonly reported under TRI (Form R) and where do you gather your information?

  • Benzene, xylenes, and other constituents of fuel are commonly reported by facilities that dispense significant quantities of fuel (such as airfields).  Check with Facilities Maintenance or other personnel responsible for tracking fuel use.  You can estimate concentrations of these constituents using  EPA's guidance (see Table 3-4).
  • Nitrates produced as by-product of wastewater treatment are often reported by facilities with wastewater treatment plants (WWTP).  Check WWTP flow data, wastewater sampling and analysis records, and WWTP sludge disposal records.
  • Copper and lead are common munitions constituents and are often reported by military installations and other facilities with small-arms ranges.  Check munitions usage records, hazardous waste manifests, and non-hazardous waste shipment records.
  • Facilities with industrial activities may be required to report other toxic chemicals as well.  Check hazardous material usage reports, if available, or material purchasing records and applicable SDSs to identify toxic chemicals that need to be reported.

As with Tier II reporting, facility walk-throughs are a valuable tool for verifying data from other sources and identify any toxic chemicals at your facility that were not captured elsewhere.

What types of products are typically exempted from TRI reporting?  

  • Chemicals intended for personal use are not required to be reported.  This exemption typically applies to chemicals present in products used by employees for personal comfort.
  • Chemicals used for routine janitorial or grounds maintenance are exempt from TRI reporting requirements.
  • Chemicals used to maintain motor vehicles operated by the facility are exempt from reporting requirements.  This exemption does not apply to motor vehicles that are brought on site solely for purposes of repair or refueling.  For example, depot-level maintenance activities at military installations are not included within this exemption.
  • Chemicals present in solid manufactured articles, such that releases of the chemical do not occur under conditions of normal use, are exempt from TRI reporting. 
  • Chemicals used at a research laboratory facility are exempt from TRI reporting requirements.  This includes chemicals that support medical/laboratory research and diagnosis.
  • Chemicals present below de minimis concentrations are exempt from TRI reporting requirements.  The de minimis level for most toxic chemicals is 1%.  This exemption does not apply to PBT chemicals.

Are there any other reporting requirements under EPCRA?

Yes!  Sections 302, 304, and 311 each have reporting requirements.

  • Section 302 requires all facilities to provide a list of all EHSs stored on site in amounts exceeding the applicable threshold planning quantity.  Notification under Section 302 must be made in writing within 30 days of any change that affects reporting of EHSs. 
  • Section 304 requires all facilities to report, verbally and in writing, any spills of EHSs and certain other hazardous substances if the amount spilled over a 24-hour period exceeds the reportable quantity. 
  • Section 311 requires all facilities to submit a one-time list (or provide copies of SDSs) of all hazardous materials stored on site in quantities exceeding 10,000 pounds or the applicable EHS threshold, with updates as needed.

What are some common EPCRA regulatory violations?

  • Inaccurately reporting chemicals, such as combining two separate chemicals on a single form.  For example, two different fuels or POLs stored in adjacent tanks may be inadvertently reported as one chemical.
  • Inadequate documentation to support a decision not to report.  Documentation should include all applicable data on hazardous materials quantities and any assumptions and calculations used.
  • Not filing Section 311 updates.  Although Section 311 requires a one-time submission, it also requires that updates be filed to account for new chemicals or increases in the amount of a chemical present at the facility.
  • Failing to report all chemicals that exceed applicable Tier II or TRI thresholds.  For example, sulfuric acid is an EHS and has a Tier II reporting threshold of only 500 pounds, but is often omitted from Tier II reports when it should be included. 
  • Late reporting.  Tier II reports are due by 1 March each year, while TRI reports are due by 1 July. 

What are the benefits of EPCRA Compliance?

The most obvious benefit is achieving compliance with regulatory requirements and avoiding expensive fines.  In 2016, the grocery chain Whole Foods Market was fined over $36,000 for failing to report the storage of sulfuric acid, lead, and diesel in a timely manner.  There are other benefits as well.  Many organizations have established sustainability goals, and accurate and complete EPCRA reporting can provide valuable data to track progress towards these goals.  A review of Tier II and TRI data can also yield valuable insights about where to focus toxic chemical and waste reduction efforts.

If you have any questions or comments regarding this article or recommendations for topics to be addressed in future articles, please feel free to contact John Ribar (619.260.1033 ext. 301, johnr@phe.com) or Brian Whipple (301.907.9078 ext. 3029, brianw@phe.com).

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March 2017 - PHE staff go all in at Marine Corps Air Ground Combat Center Twentynine Palms as part of Waste Characterization Study

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PHE's Julia Norris and Paul DiPaolo demonstrate their dedication as part of a study to quantify the amount of recyclable materials in MCAGCC's waste streams in support of efforts to reduce landfilled waste and evaluate a Materials Recovery and Recycling Facility.

JANUARY 2017 - PHE PULSE: 10 THINGS YOU NEED TO KNOW ABOUT UPDATES TO HAZARDOUS WASTE REGULATIONS

On November 28, 2016, the U.S. Environmental Protection Agency (EPA) published its final Hazardous Waste Generator Improvements Rule in the Federal Register. The new rule makes over 60 changes to the existing Resource Conservation and Recovery Act (RCRA) generator regulations. Although some of the changes are minor or simple clarifications, many are significant and potentially applicable to every industry that generates hazardous waste. The new rule reorganizes the regulations to make them more user-friendly, clarifies many ambiguities and contradictions, and addresses previously documented gaps in the regulations.

Here are ten things that you should know about the new rule prior to it taking effect.

1.      VSQG is the new CESQG. The term "conditionally exempt small quantity generator" (CESQG) will be replaced with "very small quantity generator" (VSQG) to improve clarity. VSQGs will have the option to ship their waste to a large quantity generator (LQG) under the control of the same company/owner/person. The waste does not need to be manifested, and it can be self-transported without the need for a licensed hazardous waste transporter. Once the waste arrives at the LQG, it must be managed as hazardous waste under the more stringent requirements applicable to LQGs. The LQG will also be required to notify EPA of this activity, maintain additional records, and document these wastes in their Biennial Reports (when applicable).

2.      New SQG Notification Requirement. The new rule requires small quantity generators (SQGs) to renotify EPA of their continued status as a SQG (if applicable) every 4 years (unless their state has more frequent renotification requirements). The compliance date for this portion of the rule is delayed until 2021 to give states time to update their reporting forms and make other necessary changes.

3.      New Contingency Plan Quick Reference Guide. The new rule requires LQGs to develop a Contingency Plan Quick Reference Guide that they must provide to applicable emergency responders along with the full version of the Contingency Plan. This Guide alerts first responders to the most critical information at the time of an emergency, and must contain eight key elements detailed in the new rule. Generators must also document attempts to make arrangements with local emergency responders (or document that arrangements were sought but not obtained), and keep this documentation in the facility's operating record.

4.      New Episodic Generation Provisions. Episodic generation refers to occasions where a VSQG or SQG exceeds its monthly generation limits due to a planned (e.g., a periodic tank or hazmat locker cleanout) or unplanned event (e.g., an accidental spill/release or unforeseen upset condition). The new rule provides specific guidance and increased flexibility for these occurrences, allowing generators to maintain their existing generator category if they comply with streamlined requirements. Each generator will be allowed to have one episodic event per calendar year, with the ability to petition for a second event if needed. If the first event is planned, the petition for a second event must be for an unplanned event, and vice versa. The facility must notify EPA at least 30 days prior to a planned event or within 72 hours after an unplanned event. The waste generated during the episodic event must be off site within 60 days.

5.      More Detailed Container Labeling Requirements. EPA increased the labeling requirements for all containers of hazardous waste, including drip pads, tanks, and containment buildings. Under the new rule, in addition to being labeled as hazardous waste, all containers of hazardous waste must also be labeled to indicate the hazards associated with the waste (e.g., ignitable, corrosive). Prior to sending hazardous waste off site, all generators must also mark their containers with all applicable RCRA waste codes, or use an accepted equivalent electronic method (e.g., barcoding).

6.      Changes for Satellite Accumulation Areas. The new rule imposes the same labeling requirements on Satellite Accumulation Areas (SAAs) that are currently in place for Central Accumulation Areas (as discussed in Item 5 above). Additionally, containers at an SAA may remain open temporarily, when necessary for safe operation. Furthermore, the rule applies maximum weight limits to storage of acute hazardous waste, in addition to the maximum volume limits already imposed.

7.      Small Changes to Biennial Reporting Requirements. The new rule makes several small changes and clarifications regarding Biennial Reporting. Most significant is that generators that do not store hazardous waste on site prior to recycling are no longer exempt from preparing Biennial Reports to identify the wastes they are recycling. EPA also simplified conflicting guidance to confirm that an LQG must prepare a Biennial Report for the entire calendar year, even for months when they generate wastes at the volume of an SQG.

8.      Clarifications on Hazardous Waste Characterization/Determination.  To assist with hazardous waste determinations (which are a common source of violations), the new rule clarifies that a generator's hazardous waste determination must be accurate and made at its point of generation before any dilution, mixing, or alteration. It also explains more fully how generator knowledge and analytical testing can be used in making hazardous waste determinations and to evaluate hazardous characteristics.

9.      Relaxation of the 50-Foot Rule. Under current rules, LQGs may not store ignitable or reactive hazardous wastes within 50 feet of their property lines. The new rule allows the authority having jurisdiction (AHJ) over the fire code in the facility’s state or locality (e.g., fire marshal) to waive this requirement for LQGs, if the AHJ determines that the LQG’s proposed precautions are appropriate and safe.

10.  When Will This Go into Effect?  The rule becomes effective at the federal level on May 30, 2017. For states and territories not authorized for the RCRA program (Alaska, Iowa, and the territories), the rule goes into effect on that day as well. States  that have been granted the authority to implement RCRA must adopt the provisions of the new rule that are more stringent than the current regulations to retain their authorized status. However, these changes become effective only when the state adopts them or by the EPA-established deadline (July 1, 2018, for most authorized states), whichever comes first. Authorized states will not be required to adopt the less or equally stringent provisions, but they have that option.

This article provides a quick summary of the new Hazardous Waste Generator Improvements Rule so that you can begin to prepare for regulatory changes as they roll out. While these changes won’t have a massive impact on the hazardous waste industry, they do clarify and simplify some regulations. With future regulatory change uncertain under the incoming presidential administration, it is important to understand and prepare for current updates to hazardous waste regulations, to ensure that you stay ahead of the curve. If you have any questions or comments regarding the new rule, or have recommendations for other areas that should be addressed in future articles, please feel free to contact John Ribar (619.260.1033 ext 301) or Brian Whipple (301.907.9078 ext 3029).  

NOVEMBER 2016 – PHE AWARDED 5-YEAR BLANKET PURCHASE AGREEMENT FOR NEPA SUPPORT TO DOE, NNSA, and FERC!

Potomac-Hudson Engineering, Inc. (PHE) is pleased to announce that it has been awarded a 5-year Blanket Purchase Agreement (BPA) contract with the U.S. Department of Energy (DOE), including the National Nuclear Security Administration (NNSA), and the Federal Energy Regulatory Commission (FERC).  This BPA, valued at a maximum of $91M, is for the preparation of environmental impact statements (EISs), environmental assessments (EAs), and related documents to comply with the National Environmental Policy Act (NEPA).  This BPA may also may be used to procure other environmental support services including floodplain and wetland assessments; Clean Water Act permitting; cultural resources surveys and consultation; biological resources surveys, assessments and consultation; incorporating NEPA considerations into Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) documents; and preparing environmental reports required for NRC license application reviews.

This marks PHE’s third consecutive award of this contract, building upon over 10 years of successful support to DOE programs on a nationwide basis.  PHE has been DOE’s most successful small business provider under previous contract awards, and has led NEPA studies supporting may of DOE’s most challenging initiatives. PHE will be supported on this BPA by its teaming partners S.S. Papadopulos & Associates (SSP&A) and Trinity Engineering Associates (TEA), both of whom have proven records supporting DOE on complex environmental and human health studies.

OCTOBER 2016 - Gryphon | PHE | ECATS Joint Venture Awarded 5-Years Regional Environmental Acquisition Tool (REAT) Contract!

PHE is pleased to announce that the Gryphon | PHE | ECATS Joint Venture has been awarded a five-year Regional Environmental Acquisition Tool (REAT) Indefinite Delivery-Indefinite Quantity (IDIQ) Contract for Environmental Consulting Services (ECS).  Under the contract Gryphon I PHE I ECATS will provide support to the U.S. Army Corps of Engineers (USACE), South Atlantic Division (SAD) for various Department of Defense (DoD) and Interagency and International Services (IIS) customers and programs, for support and advice on multimedia environmental and occupational health and safety-related services, as well as full environmental compliance services.

September 2016 - PHE Awarded 5-Year Contract to Support Marine Corps Air Station (MCAS) Camp Pendleton.

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Potomac-Hudson Engineering, Inc. (PHE) is pleased to announce that we were recently awarded a five-year contract to provide support to Marine Corps Air Station (MCAS) Camp Pendleton’s Comprehensive Environmental Training and Education Program (CETEP) and Environmental Management System (EMS) program.  Additionally, PHE will provide support to the Air Station’s hazardous materials management, hazardous waste management, and storm water compliance programs.  This award was based on 10 years of continuous multimedia environmental support, including the preparation of a Utilities Master Plan, an Environmental Assessment, two updates to the Spill Prevention Control and Countermeasures (SPCC) Plan, a Pollution Prevention Plan, a Sustainability Gap Analysis and Implementation Plan, a Solid Waste Characterization Study, and an Integrated Solid Waste Management Plan.  PHE is grateful for the opportunity to continue supporting MCAS Camp Pendleton’s environmental programs.

April 2016 - PHE Awarded Contract to Conduct Environmental Compliance Audits for U.S. Coast Guard

PHE was recently awarded a task order under our US Coast Guard (USCG) IDIQ Contract to conduct Environmental Compliance Evaluations (ECEs) at 16 USCG installations in Virginia, Connecticut, California, Oregon, Washington, Alaska, Hawaii, and Guam.  This project will be conducted on an aggressive timeline to complete all audits by the end of September 2016.  This award follows on PHE’s successful completion of the USCG’s FY2015 ECE program where PHE conducted ECEs at USCG installations in North Carolina, Maryland, New Jersey, California, Washington, and Alaska. 

Under a separate task order award, PHE is developing USCG-wide Integrated Waste Management (IWM) Compliance guidance, to provide USCG units with procedures for achieving and maintaining compliance with the various Federal, state, and local IWM regulations.  Administrative guidance for implementing the IWM Program will accompany unit-level guidance as a separate deliverable.

 PHE is grateful for the opportunity to support the US Coast Guard.

PHE Awarded Nationwide NEPA Support Contract with the Department of Veteran Affairs

October 2015 – PHE has been awarded a 5-year contract with the VA Office of Asset Enterprise Management to prepare NEPA documentation and conduct environmental analysis.  This is PHE’s second contract award from OAEM, which was previously managed through the VA’s National Energy Business Center.  Under this contract, PHE and our teaming partner Gryphon Environmental, will provide environmental analysis support to the VA for projects that improve sustainability performance, meet sustainability objectives, and reduce greenhouse gases.  Under our prior contract, PHE prepared 20 Environmental Assessments (EAs) for the installation and operation of alternative energy sources at VA facilities, including photovoltaic (PV) energy, wind energy, and combined heat and power (CHP) systems.

PHE and EcoPlan Team Awarded 5-Year BPA with Western Area Power Administration

September 2015 - PHE and its teaming partner EcoPlan were recently awarded a five year, $5 million Blanket Purchase Agreement (BPA) for Environmental, Cultural and Biological Services, for Western Area Power Administration (WAPA), Desert Southwest Region.  Under this contract, PHE will support WAPA on National Environmental Policy Act (NEPA) studies and documentation. This contract may also include other work including field biological surveys and monitoring; wetland assessments; cultural resources investigations; and air, water and noise compliance and permitting.  These projects will be in support of WAPA’s mission to deliver hydroelectric power within a 15-state region of the central and western United States, including the continued operation of more than 40 electrical substations and over 3,000 miles of transmission lines

PHE Awarded Three-Year IDIQ Contract with the U.S. Army Corps of Engineers Fort Worth District

July 2014 - PHE is excited to announce that we have been awarded a three year IDIQ Contract with the U.S. Army Corps of Engineers Fort Worth District. Under this contract PHE will provide assistance to the Fort Worth District in supporting Military and Civil entities with their compliance with environmental laws and regulations, primarily in the Southwestern Division.  The scope of work includes the preparation of NEPA documents, environmental studies, and environmental compliance related requirements. This contract builds on other recent IDIQ contract awards that PHE has been issued with the U.S. Navy, U.S. Coast Guard, and the General Services Administration Public Building Service. 

PHE Awarded 5-Year IDIQ Contract with Naval Facilities Engineering Command

April 2014 - PHE was recently awarded a five year, $30 million Indefinite Duration, Indefinite Quantity contract  by Naval Facilities Engineering Command (NAVFAC), Southwest.  Under this contract, PHE will support NAVFAC Southwest on a broad range of environmental planning services, with an emphasis on preparation of National Environmental Policy Act (NEPA) documents. This contract may also include other work including facility plans and preliminary designs; cultural and natural resource surveys; air quality, noise and traffic studies; and public participation and agency consultation support. The locations for most projects covered under this contract will primarily be within California, Nevada, and Arizona (often for projects in desert, upland, and mountain environments); but could be anywhere in the United States where NAVFAC performs projects. 

PHE Awarded 5-Year IDIQ Contract with the United States Coast Guard

October 2013 – PHE was the only Small Business selected under the Coast Guard’s Multiple Award Environmental A/E Services IDIQ.  This 5-year contract, managed through the Coast Guard Facilities Design and Construction Center Detachment Seattle, has a total value of $60M.  It can be used by Coast Guard facilities and commands in the United States and territories.  The contract scope of work covers a broad array of services, including environmental planning; compliance evaluation, permitting, and management; training; sustainability, EMS, and pollution prevention; cultural and natural resources studies and assessments; and environmental investigations and evaluation.  PHE is extremely happy to have been awarded a slot on the environmental A/E services contract, our first large Coast Guard contract in many years.