EPCRA Frequent Questions - Sections 301 & 302
- Emergency Planning and Notification
- List of Extremely Hazardous Substances
- Threshold Planning Quantities
- Emergency Planning and Thresholds
- Emergency Planning and Small Businesses
- Emergency Planning and Exemptions
- Facility Designation
- Emergency Planning and Transportation Exemption
- Emergency Planning Requirements and Transportation Exemption
- Public Warehouse - Owner/Operator Responsibility
- Description of the Terms "Molten" and "In Solution"
- Reactive and non-reactive solid EHSs
- Non-reactive EHS solid in solution and powder form
- Pesticides Brought On-site/Applied
- Extremely Hazardous Substances in Landfills
Q. A Local Emergency Planning Committee (LEPC) must be representative of different groups and organizations, as described in Section 301(c). It states that, at a minimum, an LEPC must include "...representatives from each of the following groups or organizations: elected State and local officials; law enforcement; civil defense; firefighting; first aid; health; local environmental; hospital; and transportation personnel; broadcast and print media; community groups; and owners and operators of facilities subject to the requirements of this subtitle." Does an LEPC have to consist of one individual representative from each group and organization, or can one member of an LEPC represent more than one group or organization listed?
A. In order for an LEPC to properly carry out its duties, such as developing and distributing an emergency plan and responding to public comment, it must consist of representatives from different groups and organizations as described in Section 301(c). One member of an LEPC can be the representative for more than one group or organization, but the LEPC must include representatives from all the groups and organizations listed in the statute. For example, a member of the LEPC could be both the community group representative and the hospital representative, assuming that person is involved in both organizations.
Q. What is the primary purpose of Section 302 notification requirements?
A. Notifications indicating that a facility has one or more extremely hazardous substances in excess of the threshold planning quantity help to identify locations within the State where emergency planning activities can be initially focused. While the substances on the list do not represent the entire range of hazardous chemicals used in commerce, they have been designated as those substances which are, in the event of an accident, most likely to inflict serious injury or death upon a single, short-term exposure. Therefore, Section 302 notifications should be useful in helping State and local governments identify those areas and facilities that represent a potential for experiencing a significant hazardous material incident.
Q. What is the purpose of the list of extremely hazardous substances in regards to the emergency planning requirements of EPCRA?
A. The extremely hazardous substances list and its threshold planning quantities are intended to help communities focus on the substances and facilities of most immediate concern for emergency planning and response. However, while the list includes many of the chemicals which may pose an immediate hazard to a community upon release, it does not include all substances which are hazardous enough to require community emergency response planning. There are tens of thousands of compounds and mixtures in commerce in the United States, and in specific circumstances many of them could be considered toxic or otherwise dangerous. The list represents only a first step in developing effective emergency response planning efforts at the community level. Without a preliminary list of this kind, most communities would find it very difficult to identify potential chemical hazards among the many chemicals present in any community. Similarly, threshold planning quantities are not absolute levels above which the extremely hazardous substances are dangerous and below which they pose no threat at all. Rather, the threshold planning quantities are intended to provide a "first cut" for emergency response planners in communities where these extremely hazardous substances are present. Identifying facilities where extremely hazardous substances are present in quantities greater than the threshold planning quantities will enable the community to assess the potential danger posed by these facilities. Communities also will be able to identify other facilities posing potential chemical risks and to develop contingency plans to protect the public from releases of hazardous chemicals. Sections 311 and 312 provide a mechanism through which a community will receive material safety data sheets and other information on extremely hazardous substances, as well as many other chemicals, from many facilities which handle them. A community can then assess and initiate planning activities, if desirable, for extremely hazardous substances below the threshold planning quantity and for any other hazardous substances of concern to them. In addition to the assistance provided by the extremely hazardous substances list and the threshold planning quantities, community emergency response planners will be further aided by the National Response Team's Hazardous Materials Emergency Planning Guide. A notice of availability of this document was published in the Federal Register on March 17, 1987 (52 FR 8360) as required under Section 303(f). The planning guide was supplemented in December 1987 with the Technical Guidance for Hazardous Analysis to assist local emergency planning committees in evaluating potential chemical hazards and setting priorities for sites. This technical document provides more detailed guidance on identifying and assessing the hazards associated with the accidental release of hazardous substances on a site-specific basis. It addresses considerations such as the conditions of storage or use of the substance (e.g., conditions of temperature or pressure); its physical properties (e.g., physical state - solid, liquid, or gas); volatility; dispersibility; reactivity; location (e.g., distance to affected populations); and quantity.
Q. How did EPA determine threshold planning quantities for extremely hazardous substances?
A. The Agency assigned chemicals to threshold planning quantity (TPQ) categories based on an index that accounts for the toxicity and the potential of each chemical, in an accidental release, to become airborne. This approach does not give a measure of absolute risk, but provides a basis for relative measures of concern. Under this approach, the level of concern for each chemical is used as an index of toxicity, and physical state and volatility are used to assess its ability to become airborne. The two indices are combined to produce a ranking factor. Chemicals with a low ranking factor (highest concern), based on the Agency's technical review, are assigned a threshold planning quantity of one pound. It is believed that the one pound threshold planning quantity represents a reasonable lower limit for the most extremely hazardous substances on the list. Chemicals with the highest ranking factors, indicating lower concern, were assigned a threshold planning quantity of 10,000 pounds. This ensures that any facility handling bulk quantities of any extremely hazardous substances would be required to notify the State commission. Between the limits of one pound and 10,000 pounds, chemicals were assigned to intermediate categories of 10, 100, 500, or 1,000 pounds based on order of magnitude ranges in the ranking factors. The selection of the intermediate categories was based on standard industrial container sizes between one and 10,000 pounds. The Agency believes that limited State and local resources should be focused on those substances that could cause the greatest harm in an accidental release. The TPQs developed in this approach meet the objective such that substances that are most likely to cause serious problems (extremely toxic gases, solids likely to be readily dispersed, or highly volatile liquids) have lower TPQs than those that might be toxic but are not likely to be released to the air (non-reactive, non-powdered solids).
Q. How can a facility determine whether it has present an amount of an extremely hazardous substance (EHS) which equals or exceeds the threshold planning quantity (TPQ)?
A. To determine whether the facility has an amount of an extremely hazardous substance which equals or exceeds the TPQ, the owner or operator must determine the total amount of an extremely hazardous substance present at a facility at any one time, regardless of location, number of containers, or method of storage. This calculation must also take into account the amount of an extremely hazardous substance present in mixtures or solutions in excess of one percent and should include examination of such process components as reaction vessels, piping, etc., where formation of an EHS as a byproduct may take place.
If the EHS is a non-reactive solid in solution, first multiply the quantity of the solid on-site by 0.2 before comparing it to the lower TPQ listed for the EHS solid. If the EHS is a molten non-reactive solid, multiply the quantity of the molten solid on-site by 0.3 before comparing it to the lower TPQ listed for the EHS solid. See Q & A regarding Description of the Terms “Molten” and “In Solution.”
Q. Will the local emergency planning committees impose significant requirements on small businesses? Will EPA clarify the information requirements in the emergency planning guidance and in the rulemaking?
A. The Agency's small business analysis does not indicate that emergency planning requirements will cause a significant burden to small facilities. Small facilities are likely to use or store fewer extremely hazardous substances and handle smaller amounts, and their level of participation in the planning process will be less involved. In addition, small facilities as a class may be represented on local emergency planning committees, and their concerns will be addressed. Participation in the planning process provides an opportunity to present concerns regarding the burden of planning and to ensure that local committee requests for information are necessary. In particular small businesses may wish to encourage special small business representation on the local emergency planning committee and also make their concerns known through their facility coordinators. In addition, the National Response Team's Hazardous Materials Emergency Planning Guide (notice of availability published on March 17, 1987, 52 FR 8360) describes the information requirements established under EPCRA and how this information will be useful in developing a local emergency plan.
Q. Are facilities exempt from Section 302 notification requirements if they produce, use, or store mixtures whose extremely hazardous substance component information is not available on the MSDS provided by the manufacturer?
A. If the facility which produces, uses, or stores mixtures knows or reasonably should know the components of the mixture, the facility owner or operator must notify under Section 302 if the extremely hazardous substance component is more than one percent of the total weight of the mixture and equal to or more than the threshold planning quantity.
Q. Does the statute allow the State to designate facilities which produce, use, or store certain quantities of liquified petroleum gas, as emergency planning facilities?
A. EPA considers the designation of additional facilities to be accomplished through naming individual sites or companies, or by designation certain classes of facilities as newly covered by the emergency planning provisions of the Act. The classification scheme is one which is basically left to the Governor or the State or the SERC, after public notice and opportunity for comment. Designating facilities under Section 302(b)(2), even by targeting the facilities by the chemicals which they use or store does not have the effect of expanding the list of extremely hazardous substances (EHSs). Designating facilities under this provision only has the effect of subjecting these facilities to the emergency planning provisions of Subtitle A. Therefore, these facilities would not be subject to release reporting under Section 304, unless they also had listed chemicals, nor reporting at the lower of the threshold planning quantity or 500 pounds, under Section 311 and 312, because no substances have been added to the EHS list.
Q: A natural gas distribution facility consists of a series of pipelines and breakout storage tanks. The substances stored at the facility are exempt from all applicable provisions of EPCRA (except Section 304) under the transportation exemption at Section 327. Can such a facility be designated (under the authority of Section 302(b)(2)) as a facility subject to the emergency planning requirements of Title III?
A: Section 302(b)(2) of Title III gives the Governor or the State Emergency Response Commission (SERC) the authority to designate additional facilities as subject to the emergency planning provisions in Sections 301-304. Facilities may be designated under this authority even if all of the substances present at the facility qualify for the transportation exemption at Section 327 because they are under active shipping papers. In order to make such a designation, the Governor or SERC must first provide public notice and opportunity for comment on the proposed designation. The Governor or SERC must also notify the facility owner/operator of any facility designation under Section 302(b)(2). The effect of such a designation will be to subject the facility owner/operator to the notification requirement under Section 302(c), and to the emergency planning provisions of Sections 302-304. Such a designation would not render the chemicals at the facility, which are otherwise exempt from the reporting provisions of Title III, reportable.
Q. How do Section 302 notification requirements apply to transportation of an extremely hazardous substance (EHS)?
A. Although Section 302 reporting requirements do not apply to the transportation of any EHS, including transportation by pipeline, or storage of EHS under active shipping papers, transportation activities within a community should be addressed in local emergency plans.
Q. A farmer contracts with an applicator to spray pesticides on his fields. The applicator drives a tank truck onto the farmers' field and sprays the pesticide from the truck onto the fields. For purposes of Section 302 emergency planning requirements, are the EHSs in the truck considered present at the facility and reportable if above the threshold planning quantity? Or are they covered by the transportation exemption?
A. The transportation exemption is intended to exempt substances being transported in commerce and when stored incident to that transportation. The interpretation of storage is limited to storage under active shipping papers. Once a transportation vehicle arrives at its intended destination, it is no longer considered in transportation. If the substance which was transported to the site is not stored under active shipping papers, it is also not considered exempt. Thus, the EHS in excess of a TPQ, even though still contained in a truck would be considered present at the facility and, as such be reportable. The owner or operator of the facility (in this case the farm fields) is required to report if there are EHSs present at the facility in amounts in excess of their threshold planning quantities. If the pesticide is a non-reactive EHS solid in solution, first multiply the quantity of the solid on-site by 0.2 before comparing it to the lower TPQ listed for the EHS solid.
However, the required report is simply an identification of the facility and a facility coordinator who can be contacted for further information, to the local emergency planning committee (LEPC). Thus, it is anticipated (although not required) that in making a report to the LEPC, the owner or operator of the facility at which the EHS is applied, would indicate that the chemical is in intermittent use at a variety of sites and briefly explain the periods of time and locations where this application takes place. This will provide the LEPC with the necessary information to determine the nature of the risk posed by this facility or facilities, without placing an undue burden on the owner or operator of the facility.
Q. A public warehouse is used by several unrelated companies to store extremely hazardous substances (EHSs). For purposes of emergency planning notification, who is responsible, under EPCRA Section 302, for notifying the State Emergency Response Commission if a threshold planning quantity (TPQ) of an EHS is present at the warehouse?
A. The emergency planning regulations (40 CFR 355.10) state that the owner or operator of a facility subject to this section shall provide notification to the Commission that it is a facility subject to the emergency planning requirements. Thus, the owner or operator of the warehouse should make notification if an EHS is present in an amount equal to or excess of its TPQ. In the event of noncompliance, both the owner and operator may be held liable. (Note: The ownership/operatorship of the chemicals is not an issue here, but rather the ownership/operatorship of the facility at which the chemicals are present.) The companies who rent space in the warehouse may be considered operators if they participate in the operation of the facility to any extent. For example, a company that rents space in the warehouse and physically enters the facility, stores the material in the storage space, and then leaves the facility would be considered an operator. The companies may also be considered operators (whether they physically enter the warehouse facility or not) if they control the rented space to the extent that they can exclude others from the space. It is also the responsibility of the owner or operator of the facility to provide the name of a facility emergency coordinator to the local emergency planning committee. (40 CFR 355.20). In the event of noncompliance with this regulation, all of the owners and operators of the facility are liable.
Q. To assist state and local officials in the development of emergency response plans, EPCRA requires the owner or operator of each facility at which an extremely hazardous substance (EHS) is present in an amount equal to or exceeding its threshold planning quantity (TPQ) to notify the State Emergency Response Commission (Section 302). The list of EHSs (found in 40 CFR Part 355, Appendices A and B) whose presence may trigger an emergency planning notification indicates each chemical's threshold planning quantity. Non-reactive EHSs which are in solid form under standard conditions have two TPQs: a lower threshold, which applies to powders with a particle size less than 100 microns, chemicals in molten form, and solids in solution; and an upper threshold, which applies to all other forms of the chemical (40 CFR 355.16). What does EPA mean by the terms "molten" and "in solution" when used to describe extremely hazardous substances, and how are these forms quantified for comparison to the appropriate threshold planning quantity?
A. The term “molten” denotes the liquid form of a solid EHS at elevated temperature, which is normally in solid form at standard temperature and pressure. EPA requires facilities to account for the potential volatility of molten chemicals by applying the lower of the two TPQs listed in 40 CFR Part 355, Appendices A and B, to non-reactive solid EHSs present in molten form. Facilities need not, however, compare the entire weight of a molten chemical to the lower TPQ. The Agency examined the fraction of volatilization expected for the molten solids on the list and found that it ranges from 0.3 to 0.008 pounds/minute per pound spilled. Since data were not available for all solids and to be conservative, the Agency chose to incorporate the 0.3 fraction into the reporting requirements (59 FR 51819; October 12, 1994). To determine if the presence of a molten solid EHS triggers an emergency planning notification, the facility owner or operator should therefore multiply the weight in molten form by 0.3 and compare the resulting figure to the lower TPQ for the chemical in question (40 CFR 355.16). On March 22, 2012 (77 FR 16679), EPA clarified that the application of the reducing factor of 0.3 is to be applied for only non-reactive molten solid EHSs (40 CFR 355.16(c)).
A solid EHS is present “in solution” when dissolved, suspended or emulsified in a liquid. Solutions include aqueous or organic solutions, slurries, viscous solutions, suspensions, emulsions, and pastes (40 CFR 355.61). When determining if the presence of a solid EHS in solution triggers an emergency planning notification, the facility owner or operator should multiply the weight of the solid in solution (rather than the entire weight of the solution) by 0.2 and then compare this amount to the lower TPQ for the chemical in question (40 CFR 355.16(b)). The 0.2 reducing factor is used because experimental data for accidental releases of liquid aerosols shows that no more than 20% of the release is expected to remain airborne. This change in reporting for non-reactive solid EHS in solutions was published in a March 22, 2012 final rule (77 FR 16679).
Q. What is a reactive and non-reactive solid EHS?
A. Reactive solid means any extremely hazardous substance denoted with “a” in the “Notes” column in Appendix A or B of 40 CR 355. Reactive solids are more likely than other solids to be dispersed into the air due to the energy or heat created from their reactivity with water or air. EHSs that are reactive solids have only one TPQ assigned (no 10,000 lb TPQ) regardless of their physical state, form or particle size.
Non-reactive solid means any substance listed in Appendix A or B of 40 CFR 355 with two threshold planning quantity values, the higher TPQ being 10,000 pounds.
Q. How does a facility apply the TPQ for a non-reactive EHS solid that is handled both as a solution and as a powder?
A. Facilities that handle both the powdered and solution forms of a particular non-reactive solid EHS will have to consider the quantities of each form and the particle size of the powder to determine whether they exceed the TPQ. Below are several examples of how to apply the TPQ methods for an unspecified non-reactive solid EHS that has a lower TPQ of 500 pounds and a higher TPQ of 10,000 pounds. In each of the examples below, the number of pounds of non-reactive EHS solid in solution represents the pounds of the solid only and not other components of the solution.
Non-reactive EHS solid in solution exceeds 500 pound lower TPQ, powder (>100 microns) less than 10,000 pound TPQ. A facility has on-site 3,150 pounds of a non-reactive EHS solid in solution. They also have 5,000 pounds of the same pure non-reactive EHS powder with a particle size equal to or greater than 100 microns, which is less than the 10,000 pound TPQ. Multiplying the 3,150 pounds of solid EHS in solution by 0.2 equates to 630 pounds, which exceeds the lower TPQ of 500 pounds. Thus, the facility must report under section 302 of EPCRA based on exceeding the lower TPQ for the non-reactive EHS solid in solution form.
Non-reactive EHS solid in solution less than 500 pounds lower TPQ, powder (>100 microns) exceeds 10,000 pounds TPQ. A facility has on-site 1,800 pounds of a non-reactive EHS solid in solution. They also have 11,000 pounds of the same pure non-reactive EHS solid powder with a particle size equal to or greater than 100 microns, which is more than the 10,000 pound TPQ. Multiplying the 1,800 pounds of solid EHS in solution by 0.2 equates to 360 pounds, which is less than the lower TPQ of 500 pounds. The facility must report under section 302 of EPCRA based on exceeding the 10,000 pound TPQ for the solid EHS in powder form.
Non-reactive EHS solid in solution less than 500 pound lower TPQ, powder (>100 microns) less than 10,000 pound TPQ. A facility has 2,025 pounds of a non-reactive EHS solid in solution. They also have 5,000 pounds of the same pure non-reactive EHS solid powder with a particle size equal or greater than 100 microns, which is less than the 10,000 pound TPQ. Multiplying the 2,025 pounds of solid EHS in solution by 0.2 equates to 405 pounds, which is less than the lower TPQ of 500 pounds. Thus, the facility is not required to report under section 302 of EPCRA because it does not exceed the lower 500 pound TPQ for the non-reactive solid EHS in solution form or the 10,000 pound TPQ for the powder form with a particle size greater than 100 microns.
Non-reactive EHS solid in solution less than 500 pound TPQ and powder (<100 microns) less than 500 pound TPQ. A facility has 600 pounds of a non-reactive EHS solid in solution. They also have 400 pounds of the same non-reactive solid EHS in powder form with particle size less than 100 microns. Therefore, the lower TPQ of 500 pounds applies to both forms. The facility would multiply the 600 pounds in solution times 0.2, which equals 120 pounds. Adding 120 pounds to 400 pounds equals 520 pounds, which exceeds the 500 pound TPQ. Therefore, the facility would be required to report under section 302 of EPCRA.
Non-reactive EHS solid powder (<100 microns) less than 500 pound TPQ, processed into solution. A facility has 450 pounds of pure non-reactive solid EHS in powder form with particle size less than 100 microns (lower TPQ of 500 pounds applies). The same powder is then subsequently processed into a solution. The facility does not exceed the 500 pound TPQ based on the powder form. For the solution form, 450 pounds in solution multiplied times 0.2 equals 90 pounds, which also does not exceed the 500 pound TPQ. Therefore, the facility does not have to report for the solid EHS under section 302 of EPCRA.
Although the 500 pound TPQ applies to both powder and solution form in this example, the facility should not add together the pounds of powder form and the pounds of solid in solution multiplied by 0.2, to compare to the 500 pound TPQ, because the combined quantity does not represent the amount of the solid EHS present on-site at any one time. That is, the same quantity is not in powder form and in solution form at the same time. The facility is only required to report under section 302 of EPCRA if either the amount of non-reactive powder (<100 microns) or solid EHS in solution present at any one time exceeds the lower 500 pound TPQ.
Non-reactive EHS solid powder (<100 microns) exceeds 500 pound TPQ, processed into solution. A facility has 2000 pounds of pure non-reactive solid EHS in powder form with particle size less than 100 microns (lower TPQ of 500 pounds applies). The same powder is then subsequently processed into a solution. The facility exceeds the 500 pound TPQ based on the powder form. The subsequently processed 2000 pounds of non-reactive solid EHS in solution multiplied by 0.2 equals 400 pounds, which does not exceed the 500 pound TPQ. Because facility has more than 500 pounds on-site at one time of the solid EHS in powder form of less than 100 micron particle size, it is required to report under section 302 of EPCRA.
Non-reactive EHS solid powder (>100 microns) less than 10,000 pound TPQ, processed into solution. A facility has 3000 pounds of pure non-reactive solid EHS in powder form with particle size greater than 100 microns (TPQ of 10,000 pounds applies). This same powder is then subsequently processed into a solution (lower TPQ of 500 pounds applies). The facility does not exceed the 10,000 pound TPQ based on the powder form of greater than 100 microns. The subsequently processed 3000 pounds of non-reactive solid EHS in solution multiplied by 0.2 equals 600 pounds, which exceeds the 500 pound TPQ applicable for the solution form. Because facility has more than 500 pounds on-site at one time of the solid EHS in solution form, it is required to report under section 302 of EPCRA.
Q. Section 302 requires owners and operators of facilities that have extremely hazardous substances (EHSs) present above the threshold planning quantity (TPQ) to participate in emergency planning (40 CFR 355.20). If a facility has a pesticide sprayed on its grounds without first being stored at the facility, must the amount of EHS present in the pesticide that has been applied be counted towards the TPQ?
A. Under Section 302, an owner or operator must identify any EHSs that are present at the facility and, for each EHS, determine the amount present. If the amount present equals or exceeds the EHSs TPQ, then the facility is subject to emergency planning requirements. In this specific example, the facility would not count the amount of EHS present in the soil toward the EHSs TPQ because it is not present in a contained structure. The definition of facility (40 CFR 355.61) includes all buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person. This includes man-made structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use. Once it is applied, the residual pesticide does not have to be applied toward the threshold determination. It can be considered no longer "present at the facility." This does not, however, exempt the owner or operator from emergency planning requirements for EHSs present above their TPQ at the facility, such as any EHS in a pesticide that is brought on-site prior to application, stored, or present anywhere else at the facility.
Q. How are the quantities of the extremely hazardous substances (EHSs) to be calculated in determining if landfills are subject to the Section 302 requirements?
A. EPA realizes the practical problems presented for landfills in complying with the Title III requirements. Owners of these facilities must determine, based on reasonably available information whether any EHSs are in excess of the threshold planning quantities (TPQ). However, in making such a determination, owners and operators of landfills should apply the one percent (1%) exclusion (see 40 CFR 355.13). EPA believes that the one percent (1%) exclusion is applicable to the contents of the entire landfill based on the assumption that such containers will degrade in the landfill environment. Therefore, if the total weight of an extremely hazardous substance is greater than one percent (1%) of the total weight of the landfill waste and equals or exceeds the threshold planning quantity for that substance, the landfill is subject to Section 302 notification requirements. If no extremely hazardous substance exceeds this level, the landfill is not subject to emergency planning requirements under Title III unless designated by the Governor or State Emergency Response Commission under Section 302(b)(2). Following any resulting notification to the State Commission and designation of a facility emergency coordinator (Section 303(d)(1)) the local committee may, depending on their site specific assessment of the hazards posed by the particular facility, request participation of the facility in the Title III planning process. Even though many landfills may not be required to provide planning notification based on the one percent (1%) exclusion cited above, the landfill owner/operator and the local emergency planning committee should work cooperatively to ensure that potential chemical emergencies are addressed.