Can a lease agreement exempt a facility owner from Tier II reporting?
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?
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.