EPCRA Frequent Questions - Sections 311 & 312
- Annual or One-time
- List Instead of MSDSs
- List Rather than MSDSs
- Significant New Information
- Hazardous Chemical - Research and Development Facilities
- Public Access
- Applicability and Thresholds
- Non-Applicabilityof EHS Solid in Solution Reducing Factor for MSDS and Hazardous Chemical Inventory Reporting
- Applying Gasoline AND Diesel Thresholds
- SERCs, LEPCs, FD - Determining Compliance with USTs
- Federal UST/State UST Compliance
- Temporary Non-compliance with UST
- UST Agencies Contact Information
- Differences: Tier I/Tier II Reporting
- Deadline and Where to Send the Form
- State and Local Preemption
- Hazard Categories
- Tier II Submission Instead of MSDS/List of Chemicals
- Owner/Operator Responsibility
- Ownership Change and Responsibility for Reporting
- Determining Thresholds for the Reaction Intermediate
- Verification of Jurisdiction at Mining Facilities
- Location Identification
- Trade Secret Claim
- Trade Secret: Reporting Proprietary Compounds and Mixtures
- Confidential Location Information
- MSDS Request of an Exempted Substance
- Submission of Data to On-site Fire Departments
- Inspections of Facilities by Fire Departments
- Mixture Containing EHSs
- Mixture Reporting
- Mixture - Lead Acid Batteries
Q. What are the requirements of Section 311 and what facilities are covered? Are there thresholds for reporting?
A. Section 311 requires that the owner or operator of a facility must submit a material safety data sheet (MSDS) for each hazardous chemical which meets or exceeds a specified threshold quantity at the facility, to the state emergency response commission, the Local Emergency Planning Committee, and the local fire department with jurisdiction over the facility. A list of MSDS chemicals may be submitted instead of an MSDS for each chemical. Section 311 applies to any facility required under the Occupational Safety and Health Act to prepare or have available an MSDS for a hazardous chemical. Reporting thresholds are codified in 40 CFR 370.10.
Q. Is Section 311 requirement an annual or a one-time reporting requirement?
A. Section 311 is a one-time reporting requirement unless there are any significant changes that affect the information that was already submitted.
Q. How would a facility report a hazardous chemical that they acquired above the reporting threshold after the October 17, 1987, deadline for Section 311?
A. An update must be submitted within three months anytime there is discovery of significant new information, or if an unreported hazardous chemical is present in a quantity exceeding the reporting thresholds. This update can be the MSDS for the new hazardous chemical, an updated list of hazardous chemicals or an addendum to the original MSDS list submitted.
Q. What is required if a list is submitted instead of the actual material safety data sheets (MSDS) under Section 311?
A. Instead of submitting an MSDS for each hazardous chemical, the owner or operator may submit a list of the hazardous chemicals for which the MSDS is required. This list must identify the hazard categories (acute health hazard, fire hazard, reactive hazard, chronic health hazard, and sudden release of pressure hazard) associated with each chemical and must include the chemical or common name of each hazardous chemical as provided on the MSDS.
Q. Why does EPA recommend submitting a list rather than Material Safety Data Sheets (MSDS) to meet the requirements of Section 311?
A. List will minimize the paperwork burden for State and local governments and local fire departments. In addition, the list can be used as an index to inventory forms required under Section 312, since the information on both forms is grouped in terms of hazard categories. Local government officials and fire departments can request individual MSDSs for hazardous chemicals if it is a priority for their community.
Q. If a facility submits a list to comply with Section 311, does the facility have to supply a revised MSDS with significant new information or a new MSDS for substances that become present on-site after the initial reporting deadline and exceed the threshold within three months as required by Section 311(d)?
A. If a facility has only a list of hazardous chemicals, rather than the actual MSDS, the facility does not need to file a revised MSDS for any hazardous chemical upon discovery of new information. However, a facility must submit a revised list of any additions to the list if the new information about that chemical changes the hazard category under which it falls or the facility acquires a new substance above the threshold level that was not included on the initial list.
Q. To comply with Section 311 of EPCRA, a facility owner/operator submitted 6,000 copies of various Material Safety Data Sheets (MSDSs) for the hazardous chemicals that were present at the facility. The submission was made to fulfill the October 17, 1987 deadline for reporting on hazardous chemicals at or above 10,000 pounds and extremely hazardous substances (EHSs) at or above 500 pounds or the threshold planning quantity (TPQ), whichever is less. Effective September 1, 1989, the Occupational Safety and Health Administration (OSHA) changed many their published permissible exposure limits (PELs) for hazardous chemicals. This represents significant new information about the chemicals, and now the facility owner/operator is required to submit a complete set of new MSDSs with the PEL information included to the State Emergency Response Commission (SERC), Local Emergency Planning Committee (LEPC) and local fire department (LFD). To avoid a complete resubmittal of all 6,000 MSDSs, the facility owner/operator wants to change to the list option for Section 311 compliance. Would this be acceptable?
A. It is EPA policy to allow a facility owner/operator to change the owner's/operator's original method of submission under Section 311 from copies of MSDSs to a list. Regarding the facility in question, the owner/operator must submit either new MSDSs or a list to the SERC, LEPC and LFD at this time. If a list is submitted, the submitter must indicate why he or she is making the submission. The owner/operator needs to explain that because of the changes in the PELs, the original MSDSs on file are out-of-date and should be disregarded. If the LEPC requires updated MSDSs, the LEPC still has the authority under 40 CFR 370.30(b) to request the information from the facility owner/operator.
Q. Upon request by the public, must a Research and Development facility submit a MSDS for a chemical if the chemical is exempt from reporting under Section 311 but not exempt from the OSHA requirement of having available a MSDS?
A. No. Under Section 311, a Research and Development facility would not be required to report a chemical if it is used "under the direct supervision of a technically qualified individual" (Section 311(e)(4)). So, despite the fact that the facility is required to have a MSDS under OSHA's Hazard Communication Standard, the facility is not required to report it under Section 311 of EPCRA. Therefore, the facility would not be required to submit a MSDS to the public upon request.
Q. For Section 311 reporting, how are mixtures identified if a list is submitted instead of the MSDSs?
A. An owner or operator can comply with the requirements of Section 311 for a mixture of hazardous chemicals by providing the common or trade name of the mixture listed by hazard category or by listing the hazardous components.
Q. Where should citizens go to request MSDSs on chemicals in a facility within their community?
A. Each submitted MSDS or list along with the community emergency response plan, and inventory form are to be made available to the public at a designated location during normal working hours. Each local emergency planning committee (LEPC) must publish annually a notice in local newspapers that the above forms have been submitted and are open to public viewing at the designated location. In addition, any person may obtain an MSDS by submitting a written request to the LEPC. If requested through the LEPC, MSDSs can be obtained for hazardous chemicals present at a facility in amounts below the threshold.
Q. Who is required to submit a Section 312 Tier I Form?
A. The requirements of Section 312 (40 CFR part 370) apply to the owner or operator of any facility that is required to prepare or have available a material safety data sheet for a hazardous chemical under the OSHA Hazard Communication Standard. Reporting thresholds have been established under this Section below which a facility does not need to report. These thresholds are:
- Extremely Hazardous Substances: 500 lbs or the threshold planning quantity, whichever is lower.
- Hazardous chemicals which are not extremely hazardous substances: 10,000 lbs
- Gasoline (all grades combined) that was in tanks entirely underground at a retail gas station that was in compliance at all times during the preceding calendar year with all applicable Underground Storage Tank (UST) requirements : 75,000 gallons
- Diesel fuel (all grades combined) that was in tanks entirely underground at a retail gas station that was in compliance at all times during the preceding calendar year with all applicable UST requirements: 100,000 gallons
Non-Applicability of EHS Solid in Solution Reducing Factor for MSDS and Hazardous Chemical Inventory Reporting
Q. Should the reducing factor of 0.2 for applying the emergency planning notification TPQs for non-reactive solid EHSs in solution also be used when applying the reporting thresholds for MSDS Reporting under section 311 and Hazardous Chemical Inventory reporting under section 312 of EPCRA (40 CFR 370)?
A. No. Facilities must not use the reduction in quantity on-site to determine the “amount present at one time” for reporting under 40 CFR 370.10. Submission of MSDSs and an on-site inventory of hazardous chemicals are needed for all forms of chemicals to help emergency responders assess how to respond to an emergency release or fire when the responders are on-site. In particular, responders need the amounts, manner of storage and locations of the chemical on-site, the chemical and physical properties, hazard ratings, toxicity information and incompatibilities of the chemical, as well as measures needed to contain the spill or fire at the facility in order to know how to respond to an emergency. In addition, they need to know what type of protective equipment is needed to protect them from exposure, not only airborne, but also dermal exposure. Emergency planning notification under section 302 is primarily focused at identifying those facilities whose accidental releases pose risks to the surrounding community outside of the facility so that LEPCs can develop emergency plans that identify the location and number of affected populations, evacuation or shelter-in-place procedures, etc.
Q. If retail gas station stores gasoline or diesel fuel in both aboveground and underground tanks, what thresholds do they apply to determine if they have to report gasoline or diesel fuel? If they have to report, do they report all the gasoline and diesel fuel at the facility?
A. Any retail gas station that has at least 10,000 pounds of gasoline or diesel fuel stored in tanks that are not entirely underground must report on the total gasoline or diesel fuel at the facility, including any that is stored entirely underground. Similarly, any retail gas station that has at least 75,000 gallons of gasoline or 100,000 gallons of diesel fuel stored entirely underground must report on the total gasoline or diesel fuel at the facility, including any that is not stored entirely underground. In other words, whether the facility triggers the threshold for underground storage or for aboveground storage, they report on the total gasoline or diesel fuel at the facility.
Q. Are SERCs, LEPCs or fire departments now required to determine if facilities are in compliance with UST requirements?
A. No. SERCs, LEPCs and fire departments are not required to make the determination themselves on whether a facility is in compliance with UST requirements. They may obtain compliance information from state UST programs.
Q. Do facilities have to comply with the federal UST requirements or with state UST requirements to be eligible to use the new gasoline and diesel fuel thresholds?
A. Facilities must comply with either federal UST requirements (40 CFR part 280) or, if applicable, the requirements of the state UST program approved by EPA under 40 CFR part 281 in order to use the threshold for gasoline.
Q. How does temporary non-compliance with UST requirements affect applicability of the gasoline and diesel fuel thresholds?
A. Retail gas stations that were not in compliance with all applicable UST requirements at any time during a calendar year may not apply the gasoline and diesel thresholds for EPCRA reporting for that calendar year. The facility must be in compliance with UST requirements at all times during a particular calendar year to use the new thresholds for reporting for that year.
Q. Where can state/local offices get contact names and addresses for their UST agencies?
A. A list of state UST agencies can be found on U.S. EPA's Office of Underground Storage Tanks homepage at www.epa.gov/swerust1/states/statcon1.htm. A list of SERCs and LEPCs can be found by going through OEM's webpage on partnering agencies at http://www.epa.gov/emergencies/content/epcra/epcra_plan.htm#LEPC.
Q. The reporting under Section 312 is in two tiers, Tier I and Tier II. What are the general differences between the two forms?
A. Section 312 includes a two tier approach. Tier I requires information (such as maximum amount of hazardous chemicals at the facility during the preceding year, an estimate of the average daily amount of hazardous chemicals at the facility, and the general location) be aggregated and reported by hazard categories. Tier II not only requires the information mentioned above, but also requests information on specific location and storage. Finally, Tier I is required by Federal law; Tier II is required only upon request by the local emergency planning committee or the State emergency response commission. However, a covered facility may submit Tier II forms instead of Tier I forms. Some States already require facilities to submit Tier II forms or forms created by the States under their legislation.
Q. Under EPCRA §312, Tier II information for any calendar year must be submitted to the State Emergency Response Commission (SERC), Local Emergency Planning Committee (LEPC), and local fire department by March 1st of the following year. What if the March 1st reporting deadline falls on a Saturday or Sunday?
A. Tier I/II forms need to be submitted to the SERC, LEPC and the local fire department on or before March 1 even if the reporting deadline falls on a Saturday or Sunday. In order to be considered submitted, Tier I/II forms must be postmarked by March 1.
Q. What effect will Sections 311 and 312 requirements have on existing State and local "Right-to-Know" programs?
A. Title III does not pre-empt existing State or local laws. Sections 311 and 312 requirements establish "ground rules" for submitting information about the presence of hazardous chemicals in the community. Where existing "Right-to-Know" laws are in place, officials should examine their programs to see if their requirements conform to those established under Title III. Some key factors to consider are:
- What kind of information is required?
- What chemicals are covered?
- Is information publicly available?
- What are the reporting periods and frequency of reports?
- Under what conditions can trade secret protection be granted?
Right-to-Know programs that meet (or exceed) the basic requirements of Title III satisfy Sections 311 and 312 reporting requirements. To avoid duplicate reporting forms, State and local governments may use their own forms, but such forms must, at a minimum, include the content of the published uniform federal format.
Q. Sections 311 and 312 group chemicals according to hazard categories. What are these categories?
A. In the law, the reporting requirements for Sections 311 and 312 are based on the 23 physical and health hazards identified under OSHA regulations. Under Sections 311 and 312, EPA was permitted to modify these categories of health and physical hazards. EPA recognized that a smaller number or reporting categories might make managing the information easier as well as increase its usefulness, particularly since information on chemicals that present more than one hazard must be provided in all applicable categories. Based on public comment, EPA modified OSHA's 23 hazard categories to the following five hazard categories:
- Immediate (acute) health hazard, includes "highly toxic," "toxic," "irritant," "sensitizer," "corrosive," and other hazardous chemicals that cause an adverse effect to a target organ which usually occurs rapidly as a result of a short term exposure.
- Delayed (chronic) health hazard, includes "carcinogens" and other hazardous chemicals that cause an adverse effect to a target organ and the effect of which occurs as a result of long term exposure and is of long duration.
- Fire hazard, includes "flammable," "combustible liquid," "pyrophoric," and "oxidizer."
- Sudden release of pressure hazard, includes "explosive," and "compressed gas."
- Reactive hazard, includes "unstable reactive," "organic peroxide," and "water reactive."
Q. Is the submission of a Tier II form an acceptable method of reporting a list of hazardous chemicals grouped by hazard category under Section 311 of EPCRA?
A. Section 311 of EPCRA requires facilities to submit copies of Material Safety Data Sheets (MSDSs) or a list of hazardous chemicals grouped by hazard category for those chemicals present above an applicable threshold. The language "grouped by hazardous category" in the regulations means that the facility needs to submit a list of hazardous chemicals with each of the hazard categories identified. Since the Tier II form would certainly contain at least as much information as a list of hazardous chemicals grouped by hazard category it would be an acceptable submission for a list of MSDS chemicals under Section 311. Since Section 312 report is due by March 1 for information from the previous calendar year, some facilities may submit their report between January 1 and March 1. In a guidance published on July 13, 2010 (75 FR 39852) EPA provided that States may allow facilities to submit section 312 report for hazardous chemicals that they acquire between October 1 and December 31 of any given calendar year. In order to be in compliance with section 311 reporting requirements, facilities are required to submit their section 312 report three months after acquiring a new hazardous chemical above the reporting threshold.
Q. A construction company is contracted by a manufacturing company to perform work at the manufacturer's site. The construction company brings hazardous chemicals onto the site to perform its construction activities. During normal conditions of use as well as in foreseeable emergencies, only employees of the construction company will be exposed to any of the hazardous chemicals brought to the site by the construction company. Is the manufacturing company responsible for reporting, under Sections 311 and 312, on hazardous chemicals brought onto its site by the construction company?
A. No. It is the responsibility of an owner or operator who is required by the Occupational Safety and Health Administration (OSHA) to prepare or have available a Material Safety Data Sheet (MSDS) for a hazardous chemical to report on those chemicals under Sections 311 and 312. In the above scenario, the employer of the construction workers is the person who is required by OSHA to prepare or have available a MSDS for the hazardous chemicals that are brought onto the manufacturer's site to perform the contracted work. The employer of the construction workers operates a facility during the construction phase and should, therefore, report on these hazardous chemicals if applicable thresholds are met. For purposes of Sections 311/312, the manufacturing company is not required to factor into threshold calculations or report on any amounts of hazardous chemicals brought on site by the construction company because the manufacturer is not required to prepare or have available an MSDS for these chemicals under OSHA regulations.
Q. An owner leases a facility to another person. The lease agreement states that "in its use and occupancy of the facility and in its use of the leased equipment, the lessee shall abide by and comply with all governmental laws, regulations and requirements." Does this contractual language exempt the owner of the facility from reporting under EPCRA Sections 311 and 312?
A. No. Private parties cannot by contract exempt themselves from liability created by the statutory provisions of EPCRA. Note, however, that the law assigns the responsibility for reporting under Sections 311 and 312 to "the owner or operator of any facility which is required to prepare or have available a material safety data sheet (MSDS) for a hazardous chemical under the Occupational Safety and Health Act of 1970 and regulations under that act." In some instances, both the owner/lessor and operator/lessee may have the responsibility for MSDS requirements, even for the same chemicals. In other instances only one party is assigned responsibility for MSDS preparation or availability under the OSHA Hazard Communication Standard.
Q. A facility changed ownership during the third quarter of the 1990 calendar year. Which owner/operator is responsible for the submission of Section 312 Tier II form for the calendar year 1990?
A. Both owners and operators have responsibility for reporting under Section 312. While it is not required under Sections 311 and 312, it would further the purposes of EPCRA if owners and operators informed the State Emergency Response Commission (SERC) about the change in ownership of a facility. Specifically, 40 CFR 355.20 requires that the owner of a facility subject to Sections 302 and 303 should inform the Local Emergency Planning Committee (LEPC) within 30 days of any change that occurred that is relevant to emergency planning. Also, the SERC should be consulted to determine if two separate reports, one for each period of ownership, are preferred to be filed, or if one combined report capturing all information for the entire year is more desirable. Parties may wish to address who will report and the provisions of necessary records in the purchase agreement. Of course, a person who is liable for reporting cannot shed his liability through any private arrangement such as a purchase agreement.
Q. A facility owner/operator makes a specialty chemical by first producing one chemical- the reaction intermediate and then injecting chlorine into the reaction vessel to start the final reaction for the final product. The facility runs these batches 3-4 times a year. The reaction intermediate is present over 10,000 pounds on those days that the batches are run for about a half a day. The facility is required to have a Material Safety Data Sheet (MSDS) for the intermediate. Since the substance is not on site for 24 hours, must it be reported on Tier II?
A. Since the facility owner/operator is required to prepare and have available a MSDS for the reaction intermediate, the substance is subject to Section 312. For the substance to be reportable, it must be present at the facility above the threshold planning quantity - 10,000 lbs. Since no time period is specified for "present at the facility," it is implied that if the substance is present at any one time during the year above the threshold it is reportable. Therefore, since the reaction intermediate is present at the facility over 10,000 lbs at one time, the substance is reportable under Section 312 and must be included on Tier II. Also, the facility owner/operator may want to indicate in some way what three days the intermediate will be present in order to simplify planning for the facility.
Q. The owner of a coal mine is maintaining one bulk anhydrous ammonia tank and satellite ammonia tanks because of an agreement with the State pursuant to environmental regulations concerning acid mine drainage. Ammonia is used to treat surface water runoff (raise the pH of the effluent). The mine is no longer operational as the coal deposits were depleted. When it was operational, the mine was operated as a surface extraction operation. Since the mine is not in operation now, is the activity involving treatment of the water with ammonia regulated under Mine Safety and Health Administration (MSHA)? Does MSHA have jurisdiction of the mine facility now even though it is not operational?
A. As interpreted by OSHA/MSHA, the purpose of the Federal Mine Safety and Health Act of 1977 is to protect the health and safety of miners working at underground and surface coal and other mines. Based on the information provided, OSHA/MSHA have advised EPA that it appears that extraction has stopped since the coal reserves appear to be depleted. In other words, OSHA/MSHA would say that the mine is not operational and permanently abandoned due to the fact that the coal has been mined out and the only activities occurring at the site are activities associated with the treatment of acid mine drainage. According to MSHA, this type of activity is not the type of activity that would cause MSHA to exercise jurisdiction over the property since the nature of the land has changed from that of a "mine" where the purpose and intent of the mine operator was to exploit the land for minerals. Thus, MSHA generally would not exercise jurisdiction over such a site. Therefore, according to OSHA, the activity involving the treatment of water with ammonia may be regulated under the Occupational Safety and Health Act (OSHA) Hazard Communication Standard. If this activity is regulated under OSHA, and if the facility has any hazardous chemical at or above the thresholds defined under 40 CFR part 370, pursuant to EPCRA, EPA believes the facility would have to report this hazardous chemical as required.
Q. How should locations be identified on Tier I/II forms?
A. Tier I forms provide for listing the general location for all applicable chemicals in each hazard category, including the names and identifications of buildings, tank fields, lots, sheds, or other such areas. Tier II forms provide for reporting buildings, at a minimum, and allow facilities to describe briefly the location of hazardous chemicals on the form itself or to submit site plans or site coordinates. Submitting additional information, such as site plans and site coordinate system may be useful on a site-by-site basis but is not necessary for every facility.
Q. A chemical company has one operation in a foreign country and an identical operation in the U.S. For one chemical, they wish to file a trade secrecy claim under Sections 311 and 312. With regard to public disclosure, all non-government entities in the foreign country are bound by a confidentiality agreement regarding this chemical's identity and usage. However, there is no confidentiality agreement with the foreign government because the foreign government's laws have a statutory guarantee of confidentially for all foreign business interests. Does this lack of a tangible confidentiality agreement with the foreign government constitute public disclosure? How is this reported on the substantiation form?
A. The fact that there is no tangible piece of paper stating "confidentiality agreement," is not dispositive. The statutory guarantee of confidentiality serves as an agreement of confidentiality. Therefore, Question 3.2 on the Substantiation Form asking about disclosure may be checked "No."
Q. A chemical company in Louisiana filed their Section 311/312 reports by hazardous components. The Louisiana State Right-to-Know laws require companies to report on all unique substances present at the facility. For example, if chemical A and chemical B are blended to make mixture C, then the facility would have to report on chemical A, chemical B and mixture C containing A and B. The facility has no problem reporting on the chemicals present on site because they stock a large number of chemicals and their competitors would never be able to figure out their mixture compositions from all these possible chemicals. However, Louisiana requires the company to report on mixture C and the chemicals in it - i.e., chemicals A and B. The facility does not want to reveal what chemicals are present in what mixtures. How does this facility file a trade secret claim?
A. Federal requirements for Section 311/312 state that a facility may report on the mixture as a whole or may report on the hazardous components. It does not require that a facility do both. Therefore, since the mixture and components are not required to be reported, there is no reason for the facility to file a trade secret claim with the Federal EPA. However, the State of Louisiana is requiring information above and beyond the Federal requirements. Therefore, in order for the facility to protect its trade secret mixture formulation, the company must file trade secret claim in accordance with the Louisiana State trade secret provisions (53 FR 28795).
Q. A facility is storing a product mixture on-site. Under OSHA regulations, the facility is required to retain a material safety data sheet (MSDS) for the mixture. According to the MSDS, the mixture contains a zinc compound, but no specific chemical identity or concentration information is provided. OSHA regulations allow chemical manufacturers to withhold this information from the MSDS under a trade secrecy claim (29 CFR section 1910.1200(i)). From the MSDS the owner/operator can not tell whether the proprietary compound is a hazardous chemical (such as zinc silicofluoride) or an extremely hazardous substance (EHS) (such as zinc phosphide). To comply with Sections 311 and 312 reporting requirements, this facility must determine whether this mixture exceeds the appropriate inventory threshold levels. How would the facility make this determination? Once a quantity is calculated, should it be compared to the hazardous chemical threshold of 10,000 pounds, or should the facility owner or operator assume the compound is an extremely hazardous substance (EHS) and use the applicable lower threshold?
A. Pursuant to 40 CFR section 370.14, a facility may report on a mixture as a whole or on each hazardous component of the mixture. The option of reporting by components, however, is not available if components are not known. In this case, since the MSDS contains no information on the concentration of the proprietary zinc compound, the facility must report the mixture as a whole. The next step in evaluating whether a facility is required to report under Sections 311 and 312, is to compare the quantities stored on-site to the appropriate threshold level codified in 40 CFR section 370.10. For hazardous chemicals that are not EHSs, reporting is required if the facility has over 10,000 pounds on-site at any one time. For extremely hazardous substances, reporting is necessary if the facility has the chemical on-site in quantities over 500 pounds or the threshold planning quantity (whichever is lower). In this scenario, the specific identity of the chemical is not available to the facility owner or operator. Because the facility receives an MSDS for the mixture, the owner or operator knows that the mixture is a hazardous chemical. While the owner or operator has a duty to make all reasonable efforts to determine whether or not the substance is an EHS, if there is no information reasonably available to this facility owner or operator to make this determination. Therefore, the regulations do not require reporting the mixture as an EHS. For the zinc compound mixture, the facility could assume the mixture is a hazardous chemical and apply the 10,000 pounds threshold level to the overall weight of the mixture. In addition, the facility should state that it is "unknown" whether the mixture is an EHS by writing this in the appropriate box on the applicable form.
Q. When submitting a Tier II form under EPCRA Section 312, a covered facility can claim the required location information confidential. How is this confidential information protected? Are there any penalties under EPCRA if a State or local official, who receives this information, fails to protect its confidentiality?
A. While the location information on the Tier II form can be claimed confidential under EPCRA, it does not provide a confidentiality protection procedure for this information. Since claims of confidentiality regarding the location of chemicals in facilities are not covered by EPCRA trade secrecy protection, the duty to protect this information as confidential rests with State and local officials. As the Agency stated in its October 15, 1987 rule, "The confidential location information should not be sent to EPA, but only to the requesting entity. This information will be kept confidential by that entity under Section 312(d)(2)(F) which refers to Section 324 of EPCRA." Section 324(a) states that upon request by a facility owner or operator subject to the requirements of Section 312, the State emergency response commission and the appropriate local emergency planning committee must withhold from disclosure the location of any specific chemical required by Section 312(d)(2) to be contained in a Tier II inventory form." (October 15, 1987, 52 FR 38312). Interested persons should contact their State and local government's attorneys office for information regarding procedures for protecting confidential location information. Since protection of Tier II confidential location information is not covered under EPCRA, the State itself does not provide penalties for the failure to protect such information. Penalties may, however, be provided under State and local law.
Q. Under Section 311, (40 CFR 370.10(b)), a Local Emergency Planning Committee (LEPC) can request a material safety data sheet (MSDS) from a facility for a hazardous chemical which is present at the facility below 10,000 pounds. Would the facility need to supply an MSDS to the LEPC if the material in question was not a hazardous chemical as defined under 40 CFR 370.66? For example, could an LEPC request that facility submit an MSDS for a chemical which is used in a research laboratory under the direct supervision of technically qualified individual?
A. The LEPC can only request the MSDS for a substance which defined as a hazardous chemical under 40 CFR 370.66. Since a substance used in a research laboratory under the direct supervision of a technically qualified individual is not a hazardous chemical as defined by 40 CFR 370.66, the facility does not need to submit the MSDS for this substance to the LEPC.
Q. Sections 311 and 312 apply to owners or operators of any facility that is required to prepare or have available a material safety data sheet (MSDS) for an OSHA-defined hazardous chemical present at the facility at any one time in amounts equal to or greater than established thresholds. If a facility meets the criteria, its owners or operators must file MSDSs and Tier I and II inventory forms with their State Emergency Response Commission, their Local Emergency Planning Committee, and their local fire department. May a facility which maintains an on-site fire department provide the information to that entity in lieu of making it available to the public fire department?
A. Whichever fire department may have responsibility for the facility, regardless of its affiliation, should receive the reports. The purpose of the requirement to provide local fire departments with MSDS and inventory information is to better enable them to respond to emergency situations. If the on-site fire department is primarily responsible for responding to such an incident, it is appropriate that covered facilities forward the required information to that department. Facility owners or operators should also forward copies of MSDSs and Tier forms to any other fire department that might be expected to respond to a chemical emergency at the facility.
Q. Section 312(f) of EPCRA states that "upon request to an owner or operator of a facility which files an inventory form under this section by the fire department with jurisdiction over the facility, the owner or operator of the facility shall allow the fire department to conduct an onsite inspection of the facility, and shall provide to the fire department specific location information on hazardous chemicals at the facility." Can the fire department request an on-site inspection of a facility which does not file an inventory form under Section 312 since the chemicals present at the facility are below the threshold?
A. Yes. Section 312(e)(1) permits the fire department with jurisdiction over the facility to request that the owner or operator of the facility provide Tier II information concerning the facility. When a fire department requests Tier II information pursuant to Section 312(e)(1), the applicable threshold for the facility subject to the request is zero (40 CFR 370.10(b)). Therefore, upon a fire department's request, the facility would have to file Tier II forms. Because the owner or operator of the facility would be required to file a Tier II form, the owner or operator must allow the fire department to conduct an on-site inspection of a facility that has not previously filed.
Q. How are mixtures handled for Sections 311 and 312 reporting?
A. The owner or operator of a facility may meet the requirements of Sections 311 and 312 by choosing one of two options:
- Providing the required information on each component that is a hazardous chemical within the mixture. In this case, the concentration of the hazardous chemical in weight percent should be multiplied by the mass (in pounds) of the mixture to determine the quantity of the hazardous chemical in the mixture. No MSDS has to be submitted for hazardous components in a mixture with quantities in concentrations under 0.1 percent for carcinogens and 1 percent for all other hazardous components of the total weight of the mixture.
- Providing the required information on the mixture as a whole, using the total quantity of the mixture.
When the composition of a mixture is unknown, facilities should report on the mixture as a whole, using the total quantity of the mixture. Whichever option the owner or operator decides to use, the reporting of mixtures must be consistent for Sections 311 and 312, where practicable.
Q. Under Sections 311 and 312, when extremely hazardous substances are contained in a mixture, does a facility still have the option to report the mixture as a whole or by its hazardous components?
A. Yes, the mixture may be reported as a whole or by its hazardous components. To determine 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, including the quantity of the EHS present in mixtures that the facility is reporting as a mixture.
Q. With regard to thresholds in mixtures, how is reporting under Sections 311 and 312 handled if a facility has a number of different mixtures on-site and each is under 10,000 pounds but the mixtures contains an aggregated quantity of an extremely hazardous substance (EHS) that exceeds its reporting threshold?
A. If extremely hazardous substances are components of a mixture, the quantity of the extremely hazardous substance in each mixture shall be aggregated to determine if the threshold value has been reached for the facility. You must include the quantity present in the mixture even if you are also are also counting the quantity of that particular mixture toward the threshold level for that mixture Reporting may be accomplished by reporting on the component or the mixture even if the amount of the mixture(s) is below the reporting threshold. (55 FR 30632, July 26, 1990)
Q. A facility has hydrofluoric acid which is a mixture of hydrogen fluoride and water. The MSDS specifies that the mixture is 50% hydrogen fluoride and 50% water. For purposes of reporting under Sections 311/312, should the facility report on the hydrofluoric acid mixture or the 50% hydrogen fluoride?
A. Since the MSDS for hydrofluoric acid specifies that it is a mixture of 50% hydrogen fluoride and 50% water, the facility would only have to report the 50% hydrogen fluoride if it exceeded the 100 pound threshold planning quantity. See 40 CFR 370.28 (55 FR 30632, 30646 (July 26, 1990)). Hydrogen fluoride is listed as the Extremely Hazardous Substance (40 CFR Part 355, Appendix A), and its Sections 311/312 reporting threshold is 100 pounds. This is the case even though the CAS# for both hydrogen fluoride and hydrofluoric acid are the same. If more than 100 pounds of hydrogen fluoride is present at the facility, the facility may report hydrogen fluoride by itself (i.e., 100 pounds of hydrogen fluoride) or by the total weight of the mixture (i.e., 200 pounds of hydrofluoric acid).
Q. A facility owner/operator brings on-site two components that he blends into a mixture for on-site use. Since the mixture is not distributed to commerce, the facility owner/operator claims that Occupational Safety and Health Administration (OSHA) does not require him to develop a new Material Safety Data Sheet (MSDS) for the mixture. Rather he simply uses the MSDSs for the two components. When the facility owner/operator submitted his list under Section 311, he reported on the mixture rather than on the components. If his Local Emergency Planning Committee (LEPC) requests a copy of the MSDS for the mixture reported on his list, is the facility owner/operator required to develop a MSDS for the mixture? Or, can he submit the copies of the MSDSs for the components, since no new MSDS is required under OSHA's Hazard Communication Standard (HCS)?
A. In satisfying the reporting obligations of Sections 311 and 312 and 40 CFR Section 370.30 (material safety data sheet (MSDS) reporting) and Section 370.40 (inventory form reporting), the statute and the regulations allow an owner or operator the option of reporting on the hazardous components in the mixture or on the mixture as a whole (see Section 311(a)(3) and 40 CFR 370.14). The statute and regulations require, however, that when an owner or operator reports on the mixture as a whole, that he or she have available an MSDS for that mixture. For example, under Section 311(c), the statute requires that when an owner or operator of a facility submits a list of chemicals to satisfy the reporting requirement of Section 311, he or she submit the material safety data sheet for the chemicals or the list upon the request of the Local Emergency Planning Committee. In addition, under Section 312(d)(2)(A), a Tier II inventory form must provide "the chemical name or the common name of the chemical as provided on the material safety data sheet." Thus EPA interprets the statutory and regulatory provisions to allow reporting on mixtures for which owner or operator has available a material safety data sheet. The Agency recognizes that OSHA does not require the preparation or availability of MSDS for all mixtures an owner or operator may wish to report as a mixture under EPCRA. Nevertheless, because of the statutory and regulatory requirements of EPCRA, the Agency is limiting the reporting of mixtures, as a whole, to only those mixtures for which the owner or operator has available a MSDS, regardless of whether the preparation of such an MSDS is required by OSHA. If no material safety data sheet exists for a given mixture, the owner or operator should report the hazardous components of the mixture under Section 311 (40 CFR 370.30) so that he or she is able to respond to a LEPC request for the MSDS of the mixture under Section 311(c).
Q. A facility has few lead-acid batteries (non-consumer type) on site. How does the facility report these batteries on the Tier II form?
A. The facility must first determine if there are any hazardous chemicals or extremely hazardous substances (EHSs) in the batteries. Most batteries contain sulfuric acid, an EHS, and then some non-EHSs. The facility must evaluate if sulfuric acid should be reported on the Tier II form by aggregating the amount of sulfuric acid in each battery and determine if the total quantity meets the threshold level. The threshold level for EHSs established in 40 CFR part 370 is 500 lbs or the TPQ, whichever is lower. The threshold planning quantity for sulfuric acid is 1,000 lbs (40 CFR part 355, Appendix A and B). Therefore, if the total amount of sulfuric acid is at or above 500 lbs, which is the reporting threshold under sections 311 and 312, then the facility may choose to report the batteries indicating that sulfuric acid, an EHS is present above the threshold. The facility also has the option to report sulfuric acid on the form if the total amount in all batteries is above 500 pounds. Although the options for reporting are provided in the statute and the regulations in 40 CFR part 370, the statute and the regulations also state that reporting under EPCRA Section 311 (MSDS reporting) and Section 312 (inventory reporting) should be consistent (40 CFR 370.14(b)). It is important for emergency responders to obtain accurate information that the facility has batteries that contain sulfuric acid above the reporting threshold. The preamble to the final rule, July 26, 1990, (55 FR 30632) provides instructions on how to fill out the Tier II form for the two options. Since the batteries also contain some non-EHSs such as lead, EPA has provided in the preamble to the final rule of July 26, 1990, that the facility is not required to aggregate the amount of lead in each battery. If the facility chooses to aggregate the non-EHSs in the batteries, however, it may do so.