Are hazardous chemicals present at rail yards subject to EPCRA 311/312?
Yes, hazardous chemicals present at rail yards are subject to EPCRA Sections 311 and 312, if they are not stored incident to transportation and they are present at the rail yard in amounts equal to or in excess of the minimum thresholds in 40 CFR 370.10(a).
As explained in the answer to the question “are hazardous chemicals in transportation subject to EPCRA 311/312,” the Section 327 exemption for substances stored “incidental to transportation” does not apply when substances are not under active shipping papers. The legislative history of EPCRA makes clear that the exemption for storage under Section 327 “is limited to the storage of materials which are still moving under active shipping papers and which have not reached the ultimate consignee.” House Report No. 99-962 (Committee of Conference), October 3, 1986, 99 Cong. Conf. H. Report 962, at 311. Thus, if a rail yard is identified as the ultimate consignee on the shipping papers, or the chemicals are not under active shipping papers, the hazardous chemicals present at the rail yard are no longer in transportation or stored incident to transportation.
The reporting requirements of Sections 311 and 312 of EPCRA apply to owners and operators of facilities that are required to prepare or have a Material Safety Data Sheet (MSDS) [also known as the Safety Data Sheet (SDS)] for any hazardous chemical defined under the OSH Act or its implementing regulations.] If hazardous chemicals present at a rail yard are required to have a MSDS (SDS), and the reporting thresholds in 40 CFR Part 370 are met or exceeded, then the owner or operator of the rail yard must comply with EPCRA Sections 311 and 312.
This answer is not intended to restrict the Department of Transportation’s jurisdiction over such facilities. The Department of Transportation has jurisdiction over rail transportation of hazardous materials, including “storage incident to movement.” While DOT’s definition of “storage incident to movement” is similar to “storage incident to transportation” under EPCRA (see 68 Federal Register 61906, 61928 (October 30, 2003)), DOT’s definition can sometimes be more expansive, resulting in overlapping EPA and DOT jurisdiction in some cases.
For example, for safety reasons, DOT maintains jurisdiction over rail cars of hazardous chemicals stored on railroad-controlled property as “storage incident to movement,” no matter how long they are stored there and regardless of whether the chemicals are under active shipping papers. In the context of rail shipments, DOT’s regulations consider the type of track used for storage to be a relevant factor. The regulations at 49 CFR Sections 171.1 and 171.8 specify that, in the case of railroad shipments, even if a shipment has been delivered to the destination shown on the shipping document, if the track is under the control of a railroad carrier or track is used for purposes other than moving cars shipped to or from the lessee, storage on the track is storage incidental to movement (70 FR 20019).
Hazardous chemicals stored in rail cars at rail yards are also subject to EPCRA Sections 311 and 312 reporting requirements unless the hazardous chemicals are under active shipping papers and have not reached their ultimate consignee listed on the shipping papers, regardless of the type of track used for storage. This is to ensure that emergency responders and the public are aware of hazardous chemicals stored in their community – a particular concern when rail yards are providing storage services for chemical companies and other hazardous chemical users. Rail cars under active shipping papers that have not reached their final destination are subject to the Hazardous Materials Regulations and must have an emergency response telephone number on the shipping paper that is monitored while the hazardous material is in transportation.
Definition of hazardous chemicals and OSHA’s MSDS requirement for determining applicability of EPCRA 311/312
Should hazardous chemicals present in vehicles be considered as present in the facility?
1The OSHA requirement for Safety Data Sheets at rail yards is not preempted by the Department of Transportation’s Hazardous Materials Regulations (HMR). DOT “does not exercise its statutory authority in a manner that precludes OSHA from regulating at facilities where. . . transportation functions are performed. . . . [T]he transloading function is regulated under the HMR, while OSHA regulations apply to the working conditions under which the transloading is performed and the measures necessary to protect the employee performing transloading functions.” 69 Fed. Reg. 61906, 61926 (October 30, 2003).