THE EMERGENCY PLANNING AND
COMMUNITY RIGHT TO KNOW ACT
OF 1986
QUESTIONS AND ANSWERS
JUNE 1,1989
Trtpartd by tne tmergtnty f Canning and Community 'Xjgfit-to-'Knaw Information
Xottint. Tor mart information tail 1-800-S3S-0202 (or (202) 479-2449 in the
"Wtunington, 'DC metro anal.
CT>
cn
PROTECTION AGENCY
. 20460
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The Emergency Planning and Community Right-to-Know Act of 1986
Questions and Answers
Table of Contents
Title III: General 1
Emergency Planning
(Sections 301-303, 305) 3
Emergency Release Notification
(Section 304} 13
Liability Under Title III 23
MSDS Requirements
(Section 311) 25
TierLTierll Reporting
(Sections 311 and 312.
.30
Hazard Categories
(Sections 311 and 312) 33
Mixtures
(Sections 311 and 312) 34
Exemptions
(Sections 311 and 312).
.36
Preemption
(Sections 311 and 312) 43
Trade Secret 44
Toxic Chemical Release Reporting
(Section 313) 46
How Title III Affects
Various Type« of Facilities 51
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TITLE HI: GENERAL
1. What is the relationship between EPA's voluntary, non-regulatory
Chemical Emergency Preparedness Program (CEPP) and Title HI of the
Super-fund Amendments and Reauthorization Act of 1986 (SARA)?
In June 1985, the Administrator of EPA announced a comprehensive strategy for
dealing with air toxics in the environment. As part of that strategy, EPA issued
the CEPP interim guidance in December 1985. CEPP was developed to increase
State and local community awareness of hazardous substances and to develop
State and local emergency response plans and capabilities for dealing with
chemical emergencies. A list of 366 extremely hazardous substances was
included in the CEPP interim guidance as a focus for preparedness activities.
On October 17. 1986, the Superfund Amendments and Reauthorization Act
(SARA) was signed into law. A major SARA provision is Title III: "Emergency
Planning and Community Right-to-Know Act of 1986." Title III establishes
requirements for Federal, State, and local governments as well as industry
regarding emergency planning and "Community Right-to Know" reporting on
hazardous chemicals. The emergency planning provisions of Title III require
each State to establish a State emergency response commission, emergency
planning districts, and a local emergency planning committee for each district.
The state commission and local committees are responsible for preparing and
implementing emergency plans as well as receiving and disseminating copies of
material safety data sheets (MSDS), chemical inventory/release forms, toxic
chemical release forms, follow-up written notices (Section 304), and emergency
response plans.
EPA views Title III as the legislative embodiment of CEPP with several key
additions. Title III builds upon EPA's CEPP and numerous State and local
programs aimed at helping communities to meet their responsibilities regarding
potential chemical emergencies by adding new, federally mandated concepts: a
planning structure for the public sector (State commissions, planning districts,
local committees) and reporting requirements for the private sector to help keep
the community informed of potential chemical hazards. Title III also has
provisions for training grants, a study of emergency systems, an emissions
inventory, enforcement, civil suits, and trade secrets.
The general planning portions of the CEPP interim guidance (Chapters 1,2,4,5)
have been incorporated into the Hazardous Materials Emergency Planning Guide
developed by the National Response Team (NRT). This guide, published in March
1987, met the Title III requirement for the NRT to publish guidance on the prepa-
ration of emergency plans by March 17,1987. The specific technical aspects of the
CEPP interim guidance (site specific information and criteria included in
June 1.1999
Paee !
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Chapters 3 and 6) were issued in December 1987 in the Technical Guidance for
Hazards Analysis as a supplement to the NET guide.
June 1,1989
Page 2
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EMERGENCY PLANNING
(Sections 301-308,305)
2. How are States expected to form their State emergency response
commission (SERC) as required under Title ffl?
States are required to establish a State emergency response commission (SERC)
under Title III. The SERC may consist of existing emergency response
organizations or may be an entirely new mechanism to address this requirement.
A SERC is responsible for designating emergency planning districts within the
State and appointing, supervising, and coordinating a local emergency planning
committee for each district. Where appropriate, existing political subdivisions or
multi-jurisdictional planning organizations may be designated as the districts
and committees.
EPA believes it is important that these SERCs include representation from more
than one State agency. Many State commissions agree and have included
agencies dealing with environmental protection, emergency management, public
health, occupational safety and health, labor, transportation, the attorney
general's office, and commerce department, as well as other appropriate public
and private sector interests. Each of these agencies have expertise to bring to an
emergency response commission. In addition, EPA's regional offices are
available to assist States in establishing and implementing required planning
structures.
Expertise in chemicals, process safety, and the hazards posed by chemicals make
State environmental protection agencies vital to the SERCs. State emergency
management agencies' knowledge of emergency planning and preparedness is
also needed in order to make a State commission an effective tool for emergency
planning at the local level. Public health agencies can provide the knowledge of
potential consequences to human health, including worker safety, while the
transportation agency should be involved due to the prevalence of transportation
incidents involving hazardous materials. Working together, these agencies can
help the State better meet its responsibilities under Title III. Of course, a
governor may wish to choose one of these agencies to serve as the lead agency for
the Commission. Some States have established such an organization; other States
have enlisted the assistance of industry and transportation officials in such multi-
agency/organization forums. The more expertise in a State commission, the
better that commission will be able to meet the Title III requirements and assist
communities in meeting their responsibilities to their citizens.
A December 1986 letter from the National Governors' Association to all governors
summarizes the Title III requirements and requests the designation of a contact
person in each governor's office to receive further information on what other
June 1,1989
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States and EPA are doing to implement Title III. The letter also mentions the
existence of a State Chemical Emergency Preparedness Program contact and a
State representative to the Regional Response Team. The need to coordinate with
these individuals in the development of the State commission was strongly
emphasized.
3. Must the States notify EPA when they have established the State emergency
, response commissions and local emergency planning committees? Will EPA
publish *hi« information in t*1* Federal Register or disseminate it in •M**^ way so
that all affected parties may have access to it?
Although states are not required to notify EPA of the establishment of State
emergency response commissions and local emergency planning committees, the
Agency strongly encourages States to do so. In addition, EPA encourages States
to notify the public, especially potentially affected facilities. Interested parties
may contact their Governor's office for information on their State commission, or
call the Emergency Planning and Community Right-to-Know Information
Hotline at 1-800-535-0202. EPA Regional Administrators have written to the
governors of each State and Territory to inform them of the Title III
requirements, to offer information and technical assistance in the development of
State and local planning structures, and to request that they notify EPA of the
establishment of the State emergency response commission.
4. Title m requires each local emergency planning committee to prepare an
emergency plan by October 17,1988 and update them •timidly. What federal
resources will be available to State and local governments to prepare and update
these plans?
Recognizing that emergency planning is primarily a State and local
responsibility, Congress did not explicitly authorize Federal funds for
implementation of Title III requirements. However, Section 305(a) of Title III
does authorize $5 million a year for the Federal Emergency Management Agency
(FEMA) to make grants to support State/local- and university-sponsored
programs for training-related activities associated with hazardous chemicals.
These funds were available in FY 87-88. In the absence of explicit grant making
authority for emergency planning activities, the Federal government will
continue to provide technical assistance and guidance as well as training to
support state and local emergency planning.
EPA, along with other members of the National Response Team, has developed
the Hazardous Materials Emergency Planning Guide, which was published in
March 1987. This was supplemented in December of 1987 with the Technical
Guidance for Hazard Analysis of extremely hazardous substances. In addition,
chemical profiles on each extremely hazardous substance are available to each
State emergency response commission.
EPA, FEMA, the States, the Chemical Manufacturers Association (CMA), other
industry and trade assocations, and public interest groups developed a booklet.
June 1,1989
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It's Not Over in October, in September 1988. This booklet offers sugestions to local
emergency planning committees to help them implement Title III.
EPA will also continue to provide technical assistance and training to States and
local communities through its regional offices and the Environmental Response
Team (ERT) in Edison, New Jersey. ERT, in addition to its ongoing training
courses, is developing two additional training modules focusing on extremely
hazardous substances. EPA and FEMA have developed a hazardous materials
contingency planning course with train-the-trainer delivery for states. EPA is
developing a module on the National Contingency Plan, the hazardous materials
response system, and the extremely hazardous substances for incorporation into
17 currently identified FEMA emergency preparedness and response courses.
Additionally, EPA regional offices, along with other Federal agencies through the
Regional Response Teams, are providing technical assistance through workshops
and consultation with State and local officials upon request.
5. What will happen if a State refuses to comply with the emergency planning
provisions?
A governor who does not designate a State emergency response commission
becomes the commission by default. While the governor could choose not to fulfill
any of the Title III provisions, the public could still request information that
would be submitted by facilities as part of the emergency plan, material safety
data sheets (MSDS), inventory forms, toxic chemical release forms, and follow-up
emergency notices. In addition. Title III provides for citizens to bring suits
against the State Governor or the State emergency reponse commission to force
them to comply with certain Title III provisions.
6. Section 305(a) of Title m authorizes the Federal Emergency Management
Agency (FEMA) to make grants to support State and local government- and
university-sponsored training programs. Specifically, what can these grants be
used to fund?
The grants will be used to expand training activities beyond the existing training
base of States. AH training offered under Section 305(a) funding must be in
addition to training already underway.
The National Response Team has identified courses supporting Title III that
warrant increased availability among State and local personnel. Each State
emergency response commission will be responsible for channeling training to
high hazard or priority areas and for approving training proposals within the
state. EPA expects initial heavy emphasis on planning and awareness training,
consistent with Title III objectives.
FEMA and EPA have developed an addendum to the Comprehensive Cooperative
Agreement (CCA) which will allow States to submit requests for these funds.
This addendum was sent to all States on June 24,1987.
June 1,1989
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7. Are emergency exercise design, development, and implementation
activities eligible to be funded under Section 305
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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.
11. What it the purpose of the list of extremely hazardous substances in
regards to the emergency planning requirements of Title in?
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 opl 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 of Title III 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 separate notice of availability of this document
was published in the Federal Register on March 17, 1987 (52 £& 8360, 61) as
required under Section 303 (f) of Title III. The planning guide was supplemented
in December 1987 with the Technical Guidance for Hazards Analysis to assist
local emergency planning committees in evaluating potential chemical hazards
and setting priorities for sites. This technical document provides more detailed
June. 1,1989
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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.
EPA, FEMA, the States, CMA, other industry and trade associations, and public
interest groups developed a booklet, It'$ Not Over in October, to offer suggestions
to local emergency planning committees to help them implement Title III.
12. How did EPA determine threshold planning quantities for extremely
hazardous substances?
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
the highest ranking factors, indicating lower concern, were assigned a thres
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).
June 1,1989
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13. How can a facility determine whether it ha* present an amount of an
extremely hazardous substance (EHS) which equal* or exceeds the threshold
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 on May 17, 1987 or any time after that date, 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 (1) percent and should include examination of such process
components as reaction vessels, piping, etc., where formation of an EHS as a by-
product may take place.
14. Will the local emergency planning committee* impose significant
requirement* on small businesses? Will EPA clarify the information
requirement* in the emergency planning guidance and in the rulemaking?
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 there.
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 £E 8360)
describes the information requirements established under Title HI and how this
information will be useful in developing a local emergency plan.
IS. What type* of facilities are exempt from Section 302 notification
requirement*?
With the exception of Federal facilities. Section 302 notifications are required from
owners or operators of any facility that has present at any time, starting May 17,
1987, a listed extremely hazardous substance (EHS) in any amount exceeding the
threshold planning quantity (TPQ) associated with that substance.
1 6. How do Section 302 notification requirement* apply to transportation of an
extremely hazardous substance (EHS)?
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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.
1 7. Are facilities exempt from Section 302 notification requirements if they,
produce, use, or store mixtures whose extremely haisundous substance component
U ™t ««
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quantity at any one time. However, if the release is Federally permitted under
Section 101 (10) of CERCLA, which includes permitted emissions into the air
under the Clean Air Act, then the release need not be reported under Section 304
of Title III. The proposed rulemaking on Federally permitted releases was
published in the Federal Raster July 19, 1988 (53 £E 27268).
20. Can existing State and local lawi that provide substantially similar
^utaiymry planning «iip»mi>A» th» «p«*n«p piwirfaiftM ttt S*t<*inn 9flg nt tK» F«Aw»l
law?
Title III (Section 321) generally provides that nothing in Title III shall preempt or
affect any State or local law. However, material safety data sheets, if required
under a State or local law passed after August 1, 1985, must be identical in content
and form to that required under Section 311. Accordingly, while Title III does not
supercede State or local laws, EPA has no authority to waive the requirements
imposed under Title III. These requirements, including the threshold planning
quantities, are intended to be minimum standards.
EPA is working with States that have developed reporting forms and planning
structures to determine the most efficient approaches to avoid duplication of effort
with existing State or local structures, forms, and requirements.
21. When calculating the vulnerability zone distances, how would the quantity
released (QR) be handled for an extremely hazardous substance (EHS) in solution?
If the EHS is in solution, a facility can make a rough estimate of the QR using
equation (1) on page G-2 of the "Technical Guidance for Hazards Analysis." If the
facility has information on the physical properties of the EHS in solution, this data
can be input into equation (1) to get the QR of the EHS.
Equation (l)QRs 60 sec/min * MW * K T A T VP « 929 c
R x (Tl + 273) x (760 mm Hg/atm) x 454 g/lb
Where: QR = Rate of release to air (Ibs/min);
MW = Molecular weight (g/g mole);
K * Gas phase mass transfer coefficient (cm/sec);
A - Surface area of spilled material (ft2);
VP » Vapor pressure of material at temperature Tl (mm Hg);
R = 82.05 atm cm3/g mole K; and
Tl • Temperature at which the chemical is stored (°C).
If the physical properties of the EHS in solution are not available, the QR can be
estimated using the physical properties of the EHS. This would reflect the QR of
the EHS in its pure form. Since the EHS is in solution, the QR would need to be
multiplied by the mole fraction of the EHS in solution to accurately reflect the QR
of the EHS. If the facility only has the weight fraction of the EHS in solution, the
weight fraction can be used instead of the mole fraction to estimate the QR of the
EHS.
June 1.1<»9
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22. Doe* the statute allow die State to dedgnate fscffltiea which produce, use or
•tore certain quantities of liquified petroleum gat, am emergency planning
acuities?
EPA considers the designation of additional facilities to be accomplished through
naming individual sites or companies, or by designating certain classes of
facilites 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(bX2), 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.
June 1,1989
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EMERGENCY RELEASE NOTIFICATION
(Section 304)
23. Who must be notified when a release oocun?
In the event that a listed CERCLA hazardous substance or extremely hazardous
substance is released in an amount equal to, or exceeding the reportable quantity
(RQ) for that substance, the following parties must be notified:
• State emergency response commission (effective May 23, 1987);
• Community emergency coordinator for the local emergency planning
committee (effective August 17, 1987, or as soon as the local committee is
established).
These notifications procedures are designed to provide for more timely notification
to State and local authorities. In addition, the owner/operator of a facility is still
required to notify the National Response Center (800/424-8802 or in DC 202/267-
2675) when a release of a CERCLA hazardous substance (in excess of an RQ) takes
place.
24. What chemicals are subject to reporting?
Chemicals subject to Section 304 notification requirements are CERCLA
hazardous substances listed under 40 C.fR. Table 302.4, and the extremely
hazardous substances listed under 40 CFR 355 Appendix A and B. At present, the
CERCLA list contains 719 chemicals or waste streams, 134 of which are also
extremely hazardous substances. For the remaining 232 extremely hazardous
substances not currently on the CERCLA list, their reportable quantity (RQ) is
tentatively set at one pound until adjusted by rulemaking.
For a reportable quantity (RQ) release of one of the 232 extremely hazardous
substances, the appropriate State and local agencies must be notified. The
proposed rulemaking for adding these 232 chemicals to the CERCLA hazardous
substance list was published on January 23,1989 (54 fR 3388). When they become
CERCLA hazardous substances, notification to the NRC will also be necessary.
25. Must any amount of a listed chemical contained within abandoned or
discarded barrels, containers, or other receptacles be considered, if a specific
reportable quantity has been exceeded under the Section 304 notification
requirements?
Section 355.20 (52 EE 13395) defines a release as "any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
June 1,1989
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dumping, or disposing into the environment (including the abandonment
discarding of barrels, containers, anft other receptacles') (emphasis added) of any
hazardous chemical, extremely hazardous substance, or CERCLA hazardous
substance." Therefore, if a facility has abandoned or discarded any barrels,
containers, or other receptacles containing an extremely hazardous substance or
a CERCLA hazardous substance and the total amount present in all of the
receptacles is in excess of its designated reportable quantity and the containers
have the potential to result in exposure to persons off site, the discarding or
abandonment of the barrels should be reported as required in Section 355.40 (52 £E
13396).
26. What if the State commiation and/or local committee*! must be notified of a
release but have not yet been established?
States were required to establish their commissions by April 17, 1987, and those
commissions were to establish local committees not later than 30 days after the
designation of emergency planning districts or by August 17, 1987, whichever is
earlier.
Section 301 of Title III provides that if the State commission is not set up by April
17, 1987, the Governor must operate as the State commission, and thus
notification must be made even if no commission is established. However, EPA
has been informed that all States have established an emergency response
commission. Local committees are required to be established not later than 30
days after the designation of emergency planning districts or by August 17,1987,
whichever is earlier. If local committees are not set up by August 17th, E
encourages facilities to provide notifications to local emergency personnel such
local emergency management offices or fire departments. Local and State
governments may make arrangements necessary for the receipt of the release
information when local committees are not yet established.
27. How is an off-site i
requirements?
lined to be subject to Section 304 notification
A release need not result in actual exposure to persons off-site in order to be
subject to release reporting requirements; potential exposure is sufficient. Any
release into the environment above the reportable quantity may have the potential
to result in exposure to persons off-site and therefore should be reported under
Section 304 notification.
28. Do the CERCLA and Title m telephone notifications include the same basic
information, such as whether the incident is still ongoing, abatement actions by
whatever entities, cause of the accident, injuries caused by the incidfH if known,
amount spilled, etc.?
The Agency does not believe that the notification specified in Section 304 should
vary from the CERCLA notification in any significant way.
June 1,1989
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29. Should the written follow-up information go not only to the local emergency
planning committee and the State commission but also to the State environmental
agency?
Section 304(c) of Title III mandates that written follow-up notification go to the
same entities that received the initial oral notification, i.e., the State commission
and the local emergency coordinator of the local emergency planning committee.
Title III does not require that written follow-up information be given to the State
environmental agency. However, written follow-up reports are available to the
state agency as to any other member of the public under Section 324. In most
cases, environmental agencies are represented on the commission and thus may
receive the information directly.
30. fehould the location and cause of an incident be included in the written
follow-up report?
To be consistent with CERCLA, EPA believes that the location of the releases is
always essential for both emergency response and follow-up actions and should be
identified in any release notification under Section 304. The cause of the accident
should always be included in the follow-up report to provide information for local,
State, and Federal officials for preparedness and prevention purposes.
31. Should the written notification also include results of a facility's inspection?
An inspection may specify measures to be applied to prevent future releases.
While this information is certainly useful in terms of preventing similar
releases, it is not required. However, State and local governments may wish to
require such information as part of their notification programs. EPA has begun
an initiative to focus corporate attention on releases. It is called the Accidental
Release Information Program. Under this program, a facility who has more
than a specific number of releases of a certain hazardous substance, or releases
in certain quantities above the reportable quantity, must report in writing to EPA
the cause of the accident, prevention practices in place, and the specific steps that
are being taken to prevent recurrence of the release.
32. The follow-up emergency notice requires the owner or operator of a facility
that has released a reportable quantity of a substance requiring Section 304
notification to relate, to a follow-up notice, "any known or anticipated acute or
chronic health risks associated with the release." Since general health
information is already given on a material safety data sheet (MSDS) for the
chemical, will an indication that "severe adverse health effects may be expected"
suffice for this requirement?
No. The health information contained in an MSDS is not specific enough to be of
use to health professionals, especially if the chemical name is confidential on the
MSDS. However if the MSDS does contain specific information, it ahould be
reported in the follow-up emergency notice.
June 1.1989
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33. Must a follow-up emergency notice be given for a release of a CERCLA
hazardous substance which U jjpl an extremely hazardous substance and for
which a reportable quantity has not been established under Section 102(a) of
In lieu of the emergency release notification required under Section 304(b), Section
304(aX3XB) provides that owners and operators of facilities that produce, use or
store a hazardous chemical and from which is released a CERCLA hazardous
substance that is not an extremely hazardous substance and for which a
reportable quantity has not been established under Section 102(a) of CERCLA,
shall provide the same notice to the local emergency planning committee as is
provided to the National Response Center under Section 103(a) of CERCLA.
Although Section 304(b) notice is not required, the facility owner or operator must
still provide follow-up emergency notification under Section 304(c). Section 304(c)
states that, "As soon as practicable after a release which requires notice under
subsection (a), such owner or operator shall provide a written follow-up
emergency notice.. .setting forth and updating the information required under
subsection (b), and including additional information...". Notification of the above*
described release is required under subsection (a), thus written follow-up
emergency notice is required. Follow-up notification of these releases must be
reported in the manner prescribed by Section 304(b).
34. What fadlitift aw emmp*- frm
*
A facility itself can only be exempted if there are no hazardous chemicals presen
at the facility. The term "hazardous chemical," as defined under Section 311 of
Title III, includes any substance which constitutes a physical or health hazard.
This broad definition is borrowed from the Occupational Safety and Health Act
(OSHA) Hazard Communication Standard, but there are certain exemptions
specified in Section 311. However, there is no single classification or type of
business (e.g. manufacturers) that are not subject to Section 304 reporting
requirements. Therefore, it is probable that few, if any, facilities will actually
have no hazardous chemicals and thus be exempt from Section 304 notification
requirements.
35. Are there exemptions to Section 304 reporting requirements?
The statute provides several exemptions from notification. They are:
(a) "federally permitted releases" as defined under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 Section
101(10);
(b) releases which result in exposure only to persons solely within the facility
boundaries;
June 1,1989
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(c) releases from a facility which produces, uses, or stores no hazardous
chemicals;
(d) "continuous releases" as defined under CERCLA Section 103(e) except for
initital reporting of the release and statistically significant releases;
(e) application of a Federal Insecticide, Fungicide, and Rodentitide Act
(FIFRA) registered pesticide, as defined under CERCLA Section 103(e) in
accordance with its intended purpose;
(f) emissions from engine exhaust of a motor vehicle, rolling stock, aircraft, or
pipeline pumping station;
(g) normal application of fertilizer; and
(h) release of source, byproduct, or special nuclear material from a nuclear
incident at a facility subject to requirements of the Price-Anderson Act (i.e.
nuclear power plants).
It should be noted, however, that some releases occurring at a facility which are
not reportable under Section 304 may still be reportable releases under CERCLA
103 and. if so, must be reported to the National Response Center. Release
reporting under Section 304 is in addition to release notification under CERCLA
Section 103. Thus, notice to the National Response Center may be required even if
no local or State reporting is required.
36. How are "continuous" and "federally permitted" release* interpreted?
Certain conditions must be examined in order to determine whether a release
meets the definition of "federally permitted" or "continuous" releases and
therefore, may not be required to be reported under Section 304. Section 101(10) of
CERCLA defines "federally permitted releases" for purposes of Section 103 of
CERCLA and release notification under Title III and includes 11 types of specific
releases permitted under certain State and Federal programs. As EPA issues
clarifications of "federally permitted release" under Section 103 of CERCLA, these
clarifications will apply equally to release notifications under Section 304 of Title
III. The proposed nilemaking on "federally permitted releases" was published on
July 19,1988 (53 EE 27268).
Under the provisions of Section 103 of CERCLA, the release must be continuous
and predictable with respect to quantity and time in order to be exempt from
Section 304 reporting requirements. In the interim, EPA is available to help
clarify these definitions as they apply to specific circumstances in order to ensure
compliance with the intent of these reporting requirements. "Continuous"
releases must be reported annually under CERCLA Section 103, but do not have to
be reported under Section 304 of Title III. The proposed nilemaking on
"continuous" releases was published April 19,1988 (53 £& 12868).
June 1,1989
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37. Doe* the "federally permitted release"
permitted releases?
exemption apply fully to State-
No. State permitted releases are exempted only to the extent that the releases are
considered "federally permitted" under Section 101(10) of CERCLA.
38. Are releases above the amount qualifying as a
exempt from Section 304 notification requirements?
"continuous releases"
Because "statistically significant increases" from a "continuous release" must be
reported as an episodic release under CERCLA Section 103(a), such release must
also be reported under Section 304 of Title III. Any clarifications or regulations
interpreting "continuous releases" or "statistically significant increases" under
CERCLA Section 103(0 will also apply to Section 304 of Title III.
39. If disposal of hazardous waste or solid waste is performed according to the
permitting and other relevant requirements of the Resource Conservation and
Recovery Act (RCRA), the Toxic Substances Control Act (TSCA), or other
applicable Federal or State laws, is it subject to emergency release notification?
EPA is currently considering whether TSCA-regulated disposal sites should be
subject to CERCLA notification. Regardless of the outcome of that decision, it is
important to note that spills and accidents occurring during disposal and outside
of the approved operation, and resulting in reportable releases of extremely
hazardous substances or CERCLA hazardous substances, must be reported to
State emergency response commission and local emergency planning commi
as well as to the National Response Center. In addition, PCB releases of
reportable quantity or more from a TSCA-approved facility (as opposed to disposal
into such a facility), must be reported under Section 304 and to the National
Response Center.
aeiy
th^kw
ofP
The RCRA disposal issue is similar to PCB disposal under TSCA. In a final rule
issued in April 1985, EPA determined that where the disposal of wastes into
permitted or interim status facilities is properly documented through the RCRA
manifest system and RCRA regulations are followed, notification under CERCLA
does not provide a significant additional benefit as long as the facility is in
substantial compliance with all applicable regulations and permit conditions.
However, spills and accidents occurring during disposal that result in releases of
reportable quantities of hazardous substances must be reported to the National
Response Center under CERCLA Section 103 (50 Efi 13461; April 4,1985). EPA
believes that the same rationale applies to Section 304. However, no notification of
proper disposal into RCRA facilities is required.
40. Are mining and mineral extraction wastes exempt under Section 304?
No. The release notification requirements apply if the wastes are CERCLA
hazardous substances or extremely hazardous substances.
June 1.1989
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41. Does the CERCLA "petroleum exclusion" apply to release reporting under
Section 304 of Title III, since "petroleum including crude oil or any fraction
thereof is exempt from reporting under Section 103 of CERCLA?
No. "Petroleum" is exempted generally from CERCLA responsibilities since it is
excluded from the definition of a "hazardous substance" under Section 101(14) and
"pollutant or contaminant" under Section 101(33) of CERCLA. Because no such
exclusion exists under Title III, if extremely hazardous substances are present in
petroleum, those substances are subject to applicable emergency planning and
release notification requirements under Title III.
42. Can.the "de minimis" concept used in d^tCTmif|*Mg th4* threshold planning
quantities in mixtures be applied in the determination of the reportable quantity
for emergency release notification?
No. The "de minimis" quantity was set in place for threshold planning quantities
simply to make the calculation of the total amount of extremely hazardous
substances on a facility more straightforward for planning purposes. The de
minimus concept does not apply to Section 304 release reporting, however,
because the extremely hazardous substance is already in the environment
potentially doing harm. Facilities should follow the "mixture rule" for reporting
releases under Section 304. This rule has some relevance in reporting small
quantities of hazardous substances. See the April 4,1985 RQ rule (50 EE 13463).
43. How are transportation-related releases covered under Section 304?
Section 304 covers all releases of listed hazardous or extremely hazardous
substances, including those involved in transportation in excess of the reportable
quantity (RQ). Owners or operators of transportation facilities may call 911 or the
local telephone operator, in order to satisfy Section 304 notification requirements
when a transportation-related release occurs. Local emergency planning
committees should work with the local 911 system and telephone operators to
ensure such transportation release notifications are immediately relayed to the
community emergency coordinator.
44. What is the responsibility of transportation owners or operators in the event
of a spill or release of extremely hazardous substances or CERCLA hazardous
substances?
Although owners or operators of facilities in transportation or those that store
substances under active shipping papers are not required to notify State and local
authorities with regard to Section 302 emergency planning, they are required to
report releases under Section 304.
With regard to stationary facilities, Section 304 requires owners and operators to
report releases to the local emergency planning committee and to the State
emergency response commission. Owners and operators of facilities in
transportation under Section 304 are allowed to call the 911 emergency number or
in the absence of a 911 number, the operator, in lieu of calling the State
June 1,1989
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commission and local committee. The rationale for this separate reporting is that
transportation operators on the road most likely will not know the telephone
numbers of all relevant State and local entities on their routes. If the
transportation operator is in a community which has a generic emergency
number rather than 911, the generic number should be used. If the release is of a
CERCLA hazardous substance, a call to the National Response Center is also
required. Local committees should consider training all personnel responsible
for receiving telephone notice of such a release, so that proper notification
procedures will be maintained.
45. How doe* EPA define a "transportation-related rulnasp?"
EPA defines a "transportation-related release" to mean a release during
transportation, or storage incident to transportation if the stored substance is
moving under active shipping papers and has not reached the ultimate
consignee.
46. In the case of transportation>related release*, should the emergency
release notification requirements apply to the owner or the operator of the facility?
Either the owner or operator may give notice after a release. Owners and
operators may make private arrangements concerning which party is to provide
release notification. However, under Section 304 both owner and operator are
responsible if no notification is provided.
47. Do the Section 304 release notification requirements apply to pipelines,
barges, an^ other vessels as well as to other transportation facilities?
Title III (Section 327) does not apply to the transportation of any substance or
chemical, including transportation by pipeline, except as provided in Section 304.
Section 304 requires notification from facilities of releases of extremely hazardous
substances and CERCLA hazardous substances. Section 327 exempts only
hazardous substances from reporting and does not otherwise exempt the facility
from Title III. The word "facility" is defined in Section 329 to mean stationary
items, which would include pipelines. The definition also includes, for purposes
of Section 304, motor vehicles, rolling stock, and aircraft. Because barges and
other vessels are not included in the definition of "facility," they are not subject to
Section 304 reporting requirements.
4& When and where should an air carrier report a release? For instance,
should the release be reported to the State where the release occurred or to the
airport of destination?
Since aircraft should have radio communication capabilities, the report should be
given to the State(s) likely to be affected by the release as soon as possible after the
release. Reporting at the destination will not necessarily enable the provision of
timely response to the affected areas.
June 1.1989
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49. What are the differences in the various requirements for release
notification under Section 108 of CERCLA and Section 304 of Title HI?
Under Section 103 of CERCLA, a release of a hazardous substance in an amount
equal to or in excess of its reportable quantity (RQ) which is not otherwise
exempted under CERCLA must be reported to the National Response Center.
Section 304 of Title III provides a similar reporting requirement for releases of
extremely hazardous substances, as defined under Section 302, as well as releases
which require notification under CERCLA Section 103. However, reporting under
Section 304 must be given by the owner or operator of a facility to the community
emergency coordinator for the local emergency planning committee and to the
State emergency response commission, as well as to the National Response
Center for CERCLA hazardous substances. Releases from transportation
incidents are also subject to the Section 304 reporting requirements.
A proposed rulemaking was published on January 23, 1989 (54 EH 3388) to
designate under Section 102 of CERCLA all extremely hazardous substances
which are not already defined as "hazardous substances" under Section 101(14) of
CERCLA. The designation will include all 232 extremely hazardous substances
that are not presently "hazardous substances" under CERCLA. At that time, any
substance requiring local and State release reporting under Section 304 of Title IH
will also require reporting to the National Response Center under CERCLA
Section 103. In addition, the extremely hazardous substances will continue to
trigger contingency planning requirements in addition to release reporting.
With regard to the contents of the required notification under SARA Section 304
and CERCLA Section 103, the required contents of Section 304 emergency
notification are set out in Section 355.40. Although Section 103(a) of CERCLA does
not specify the contents of release notification.the information necessary under
Section 103(a) for potential federal response (e.g., type of substance and nature,
location, and effects of the release) should not differ for any practical purpose
from the content of the notice specified under Section 304.
Section 304 also requires follow-up written emergency notice to the State
emergency response commissions and the local emergency planning committees
that received the initial verbal notification. This reporting is not required to be
sent to the NRC.
50. What is the relationship between RQs and TPQs?
The reportable quantity that triggers emergency release notification (Section 304)
was developed as a quantity that when released poses potential threat to human
health and the environment. The threshold planning quantities for emergency
planning provisions (Section 302) were designed to help States and local
communities focus their planning efforts. The TPQ is based on those quantities
of substances that can cause the significant harm should an accidental release
occur. The Agency has taken several steps to make the TPQs and the RQs
consistent.
June
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The Agency is reviewing RQ and TPQ methodologies and will be proposing a rule
in the near future which will address these inconsistencies for all CERCLA
hazardous substances which meet the criteria for extremely hazardous
substances. This rulemaking will eliminate this concern.
51. Company A owns m facility which manufacture* crude oil. They s«U the
crude oil to Company B, where it if kept in tanks on Company A'« facility, but
leased to Company B. Who is subject to reporting under Sections 304 and SIS?
Since the tanks are part of Company A's facility and Company A ia the owner
and/or operator of the facility, Company A would be subject to Section 304 release
notification and Section 313 reporting requirements for any release from the
tanks, which may contain either Section 302 (EHS) listed substances, CERCLA
hazardous substances and/or Section 313 listed chemicals above the applicable
reporting thresholds. Company A would also be held liable if the reports were not
made.
Because Company B leases the tanks, Company B would probably qualify as an
operator and also be responsible for, reporting the substances under relevant
provisions of Title III.
June 1.1989
Page 22
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LIABILITY UNDER TITLE HI
52. Can individuals, as members of a State emergency response commission or
a local emergency planning committee, be sued and/or be held liable for their
commission's or committee's failure to fulfill its Title in requirements?
Under Section 326, an individual may assert a Federal cause of action against a
State emergency response commission in Federal court for the commission's
failure to fulfill certain obligations under the Act. Section 326 authorizes only
injunctive relief against a State commission, i.e., if successful, the citizen may
compel the State commission to fulfill the Title III obligations listed under Section
326, but may not receive money damages for the State's failure to do so. The Act
does not create a Federal cause of action for citizens who wish to sue individuals
as members of these State commissions or local committee. Thus, whether an
individual can be liable as a member of a State commission is a question of the law
of each particular State.
In most states, this issue has been addressed by legislation or a ruling of the
Attorney General. Also, EPA will shortly publish a summary of Tort Liability
issues.
53. What are the liabilities of members of a State emergency response
commission and a local emergency planning committee, if an incident it not
handled properly despite following procedure* developed and reviewed by those
commission and committee members? Can the individual members be sued and
held liable?
The general rule is that persons who serve on government committees have no
liability for their actions except for gross negligence. According to EPA's Office of
General Counsel, however, this issue varies from state to state. Those who wish
to know the answer to this question must check with their individual State
Attorney Generals offices with regard to liability when serving on State
emergency response commissions and local emergency planning committees.
54. For Section 302 purposes, if a contractor brings an extremely hazardous
substance (EHS) on-site to a facility over the threshold planning quantity is the
owner/operator of the facility, or is the contractor required to make the notification
totbeLEPC?
Also for Section 304 purposes, if a contractor bunts a tank at a facility and causes
a release of a reportable quantity (RQ) of an EHS, should the contractor or the
owner/operator of the facility notify the community emergency coordinator?
Under both Sections 302 and 304, a contractor could be considered an operator of
the facility or a portion of the facility depending on if he/she has enough authority
June 1,1989
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over the facility or a portion of the facility. Operator is not defined by the statute or
in the regulations.
If the contractor is considered an "operator," he or she could be held liable for not
making the required notification under Sections 302 and 304 if no notification is
made by the owner or another operator of the facility.
June 1,1989
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r
MSDS REQUIREMENTS
Section 311
55. What are the requirement! of Section 311 and what fadlitie* are covered?
Are there thresholds for reporting?
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. At
present, this requirement to prepare or have available MSDSs applies to all
facilities. As of September 24, 19S8, non-manufacturing facilities also must
comply with the requirement and by April 30, 1989, the construction industry
must comply with this section.
In a regulation published on October 15, 1987, EPA established a threshold below
which facilities do not need to report. By October 17,1987, MSDS, or a list of MSDS
chemicals must be submitted on all hazardous chemicals present at a covered
manufacturing facility in quantities that equal or exceed 10,000 pounds. EPA has
designated a different and lower reporting threshold for extremely hazardous
substances. The reporting threshold is 500 pounds or the threshold planning
quantity, whichever is less.
Because EPA has yet to establish a permanent threshold level effective the third
year of reporting, MSDSs or a list of MSDS chemicals must be submitted by
October 17, 1989 (or two years and three months after the manufacturing facility
first becomes subject to these requirements), for all hazardous chemicals present
in quantities between zero and 10,000 pounds for which an MSDS has not been
submitted. However, EPA intends to revise the permanent threshold (effective the
third year) such that the threshold will not be as low as zero pounds. That
threshold will be established based on a study of first year reporting and public
comments. Revised MSDSs must be provided to the local emergency planning
committee, the State emergency response commission, and the local fire
department within three months after discovery of significant new information
concerning the hazardous chemical.
June 1,1989
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56. How does the Occupational Safety and Health Administration (OSHA)
expansion of the Hazard Communication Standard affect Section 311?
Section 311 of Title III applies to any facility covered by the OSHA Hazard
Communication Standard (HCS). On August 24, 1987, OSHA published a rule
expanding the coverage of HCS, which had previously been limited to the
manufacturing sector, to non-manufacturing facilities except for the construction
industry, SIC 15*17. The effective date of this expansion was June 24, 1988. Three
months after this effective date (September 24, 1988), these facilities were required
to comply with Section 311. The phase-in rule for the non-manufacturing
facilities would follow this schedule:
• September 24, 1988 — for facilities having any quantity at or above 10,000
pounds for hazardous chemicals and 500 pounds or the threshold planning
quantity, whichever is lower, for extremely hazardous substances;
• September 24, 1990 — for facilities having any quantity above zero pounds for
both hazardous chemical and extremely hazardous substances, threshold
level to be published by EPA.
The final thresholds for the third year of reporting are under review to determine
the appropriate amounts.
57. How ia the construction industry covered by Sections 311 and 312?
The February 15, 1989 Federal
(54 FJJ 6886), stated that the HCS has
in effect for the construction industry since January 30, 1989. EPA published i
the March 13, 1989 Federal Register (54 FR 10325 ), a clarification of the Section
311/312 deadlines for construction industry. The initial submission of MSDSs or
alternative list is due by April 30, 1989. The initial submission of the Tier I or Tier
II is March 1, 1990.
58. Is the Section 311 requirement an annual or a one-time reporting
requirement?
Section 311 is not an annual reporting requirement. EPA has designed a three
year "phase-in" schedule to balance the public's right to know with the potentially
overwhelming flood of information to State and local governments. All hazardous
chemicals present in quantities above the established threshold must have been
submitted on or before October 17, 1987. EPA will also establish a third year
threshold reporting on or before October 17, 1989, which will also constitute the
permanent threshold for Section 311 reporting.
Updates are due within three months after the discovery of significant new
information or when a new hazardous chemical becomes present at the facility
above established levels. Following this system, each hazardous chemical is only
reported once, but the reporting of the chemicals could fall at two different times.
June 1,1989
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59. Were the reporting thresholds for those facilities covered by the OSHA
expansion (those faculties required to comply with Section 311 in September 1988)
the same as those for the October 17,1987, requirement?
Yes. Based on information currently available, EPA believes that the threshold
that applies to the manufacturing sector currently subject to Sections 311 and 312
apply to the non-manufacturing facilities. However, concerns were raised over
the need to provide separate thresholds for the facilities subject to these
requirements as a result of OSHA's expanded M5DS requirements. As a result,
EPA undertook a more detailed analysis of the universe newly covered by the
OSHA MSDS requirements, including a more detailed analysis of small business
impacts and the need for separate thresholds for such facilities. Based on that
analysis, EPA will maintain the same reporting thresholds for the non-
manufacturing facilities.
60. How would a facility report a hazardous chemical that they acquired above
the reporting threshold after the October 17,1987, deadline for Section 311?
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.
61. What is required if a list is submitted instead of the actual material safety
data sheets (MSDS) under Section 311?
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.
62. Why does EPA recommend submitting a list rather than Material Safety
Data Sheets (MSDS) to meet the requirements of Section 311?
Lists 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 Ere departments
can request individual MSDSs for hazardous chemicals if it is a priority for their
community.
June 1,1989
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63. If a facility submits a list to comply with Section 311, doe* the facility have to
supply a revised MSDS with significant new information or a new MSDS for
substances that become present on-site alter the initial reporting deadline and
exceed the threshold within three months as required by Section 311(d)?
If a facility has submitted 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 addition 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.
64. Wb^resboulddtizensgotorequeatMSPSsonr^inirakuiagscmtywitbJn
their community?
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 the local committee does not have the MSDS, the local
emergency planning committee is required to request it from the owner or
operator of the facility. If requested through the LEPC, MSDSs can be obtained for
hazardous chemicals present at a facility in amounts below the threshold.
65. Is the submission of a Tier n form an acceptable method of reporting a list
of hazardous r***"*4"?1* grouped by hazard category under Section 311 of Title ZD?
Section 311 of Title III requires facilities to submit copies of Material Safety Data
Sheets (MSDS) or a list of hazardous chemicals grouped by hazard category for
those chemicals present above an applicable threshold. The language "grouped
by hazard 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.
Facility owners/operators believe that this submission of a Tier II would satisfy
the Section 312 requirements, and therefore not submit a Tier II before March 1 of
the following year. This belief is in error. Section 312 requires that a Tier II
form, if requested, be submitted between January 1 and March 1 of the following
year. Submission at this time is required in order for the facility to verify that the
information is correct for the entire calendar year.
June 1,1989
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66. A petroleum company owns many oil well* on a large oil field Each well is
on its own plot of land These plot* of land are not adjacent or contiguous and the
oil field itaelf spans many local planning districts. For purposes of Sections 311
and 312 reporting, is each oil weU a separate facility and must separate reports be
filed for each oil well?
The definition of facility for Sections 311 and 312 includes "all buildings,
equipment, structures, and other stationary items that are located on a single site
or on contiguous or adjacent sites that are owned or operated by the same person"
(52 FR 38364). Therefore, unless the well properties are adjacent or contiguous,
eacn well is a separate facility. The Title III definition of facility applies to the
land surface only; the fact that one oil company may own the subsurface rights of
an entire oil field does not make the field one "facility."
Under Sections 311 and 312, a report must be prepared for each facility owned or
operated by the same person. The regulations stipulate that certain information
must be provided to the specified agencies. Nowhere do the regulations stipulate a
separate report for each facility. Since EPA does not stipulate a separate report
for each facility, EPA does not prohibit one report being filed for similar multiple
facilities, so long as the report satisfies the statutory information requirements.
Filing one report for similar multiple facilities is a kind of "generic reporting." A
generic report would consist of one submission for each section—one MSDS for
each reportable chemical and one Tier I/II - which would provide the required
information on each well (facility). However, a generic report may only be
submitted for similar facilities. In order for facilities to be considered similar,
they must have present the same extremely hazardous substances and hazardous
substances on-site at any one time in similar amounts. If the facilities are not
similar, the generic report would not contain the facility-specific required
information and the facility would not be considered in compliance with Sections
311 and 312.
When submitting a report under Sections 311 and 312, the report must be sent to
the SERC, the LEPC and the fire department. In the case of a generic report being
submitted, the report must be submitted to every SERC, LEPC and fire department
under whose jurisdiction the similar facility crosses.
In the case of reporting for an oil field and oil wells therein, generic reporting will
prove beneficial since most wells are similar on a given field. Simply make sure
that the wells are in fact similar, that the generic report provides the facility-
specific information required and that the report is submitted to all relevant State
and local agencies. In that manner, the generic report will provide all facility-
specific information to all relevant State and local agencies.
June 1,1969
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HER I/TEER n REPORTING
(Section 312)
67. Hie reporting under Section 312 if in two den, Tier I and Tter H What are
the general difference* between the two forms?
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 requires information to be reported for each individual
hazardous chemical. 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 committee or State commission. However, a covered facility may submit
Tier II forms instead of Tier I forms. Also, States may pass legislation requiring
Tier II forms.
68. Who ia required to submit a Section 312 Her I Form?
The requirements of Section 312 (40 CFR 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:
For extremely hazardous substances:
• 500 Ibs or the threshold planning quantity, whichever is lower, on
March 1, 1988 and annually thereafter.
For hazardous chemicals which are not extremely hazardous substances:
• 10,000 Ibs for March 1, 1988 (for calendar year 1987, or the first year
reporting);
• 10,000 Ibs for March 1, 1989 (for calendar year 1988, or the second year
reporting);
• For March 1, 1990 (for calendar year 1989, or the third year reporting)
and annually thereafter. EPA will publish the final threshold amount
as soon as it is determined.
June 1,1989
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69. Where should the Tier I fonn be sent and what is the deadline?
The owner or operator subject to this reporting requirement must submit a Tier I
inventory form (or the optional Tier II inventory form) for all hazardous
chemicals present at the facility in excess of the established threshold to the State
emergency response commission, the local emergency planning committee, and
the local fire department with jurisdiction over the facility.
The deadline for submitting Tier I (or the optional Tier II) inventory forms is
March 1, 1988, and annually thereafter by March 1.
70. How should locations be identified on Tier Filer H forms?
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 systems, may be useful on a site-by-site basis but is
not necessary for every facility.
71 . When submitting a Tier II form under Section 312, a covered facility can
claim the required location information confidential How is this confidential
information protected? Are there any penalties under Title in if a State or local
official who receives this information fa'if to protect its
While the location information on the Tier II form can be claimed confidential
under Title III, Title III 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 Title III 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(dX2XF)
which refers to Section 324 of Title III. 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(dX2) to be contained in a Tier II inventory form," 52 FR
38312, 38317. Interested persons should contact their State and local
government's attorneys office for information regarding procedures for protecting
confidential location information.
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Since protection of Tier II confidential location information is not covered under
Tide III, the statute itself does not provide penalties for the failure to protect such
information. Penalties may, however, be provided under State and local law.
72. How will citizens have
to Tier lor Tier n inventory forms?
Tier I information may be obtained from State emergency response commissions
or local emergency planning committees during normal working hours.
Tier II information for a specific chemical at a facility may be obtained by sending
a written request to the State emergency response commission or the local
emergency planning committee. If they do not have the requested Tier II
information, they must obtain it from the facility. For chemicals present below
10,000 pounds, the response is discretionary by either the State emergency
response commission or the local emergency planning committee and depends on
the justification of need by the requestor. The facility must make the information
available to the SERC or LEPC if they request it on behalf of the individual.
73. In complying with a public requeet for Tier II information under Section
312, how is "need" determined?
Guidelines for determining need to know are the responsibility of the local
emergency planning committees and State emergency response commissions.
74. OSHA expanded iti Hazard Communication Standard on August 24,1987.
Doe* this affect Section 312 of Tide m?
Yes. OHSA has expanded the Hazard Communication Standard (HCS) to cover
non-manufacturers as well as manufacturers in all Standard Industrial
Classification (SIC) Codes. The effective date of the expansion of HCS for non-
manufacturers is June 24, 1988. Therefore, facilities that are newly covered by
this expansion will be subject to Section 312 reporting requirements on March 1,
1989 for reporting on calendar year 1988. Facilities in the construction industry
which were newly covered by OSHA requirements as of January 30, 1989 will
begin reporting under Section 312 on March 1,1990 for calendar year 1989.
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HAZARD CATEGORIES
(Sections 31 land 312)
75. Section 311 and Section 312 group chemical* according to hazard
categories. What are these categories?
In the law, the reporting requirements for Section 311 and Section 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 tcvthe 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 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."
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MIXTURES
Sections 311 and 312
76. How are mixtures handled for Sections 31 land 312 reporting?
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 must 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 th
mixture as a whole, using the total quantity of the mixture. Whichever option ^
owner or operator decides to use, the reporting of mixtures must be consistent for"
Sections 311 and 312, where practicable.
77. For Section 311 reporting, how are mixture* identified if a list is submitted
instead of the MSDSs?
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.
78. Under Sections 311 and 312, when extremely hazardous substances are
contained within a mixture, does a facility still have the option to report the
mixture as a whole or by its hazardous components?
Yes; the mixture may be reported as a whole or by its hazardous components.
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79. With regard to thresholds in mixtures, how it 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 cxcooda its reporting threshold?
If extremely hazardous substances are hazardous 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.
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.
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EXEMPTIONS
Sections 311 and 312
80. Are there any exemption* under Title ED for Section* 311 and 812?
There are five exemptions under Sections 311 and 312. These exemptions are:
i) Any food, food additive, color additive, drug, or cosmetic regulated by
the Food and Drug Administration;
ii) Any substance present as a solid in any manufactured item to the
extent exposure to the substance does not occur under normal conditions of
use;
iii) Any substance to the extent it is used for personal, family, or
household purposes, or is present in the same form and concentration as a
product packaged for distribution and use by the general public;
iv) Any substance to the extent it is used in a research laboratory or a
hospital or other medical facility under the direct supervision of a
technically qualified individual; and
v) Any substance to the extent it is used in routine agricultural!
operations or is fertilizer held for sale by a retailer to the ultimate customer.
There are also a number of exemptions under the OSHA Hazard Communication
Standard which affect the requirement for preparing or having available an
MSDS. These are listed in 29 CFR Section 19l0.120CKb).
81. Are research laboratories and medical facilities exempt from reporting
under Sections 311 and 312?
Research laboratories and medical facilities are not exempt from reporting
requirements under Sections 311 and 312, rather, Section 311(c){4) of Title III
excludes from the definition of hazardous chemical: "Any substance to the extent
it is used in a research laboratory or a hospital or other medical facility under the
direct supervision of a technically qualified individual." The exclusion applies to
research laboratories as well as quality control laboratory operations located
within manufacturing facilities. Laboratories that produce chemical specialty
products or full-scale pilot plant operations are considered to be part of the
manufacturing facility and therefore would not be a "research laboratory/
With respect to hospitals or medical facilities, the exemption applies only to
hazardous chemicals that are used at the facility for medical purposes under the
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supervision of a 'technically qualified individual." Veterinary facilities are
included.
82. A pharmaceutical research lab contain* a pilot plant as part of it* overall
operation. The product! manufactured in the pilot plant are not told, but are
distributed to hospitals and other health care facilities for use in continued
clinical testing, Is the pilot plant exempt or must it report its hazardous
i« under Sections 311 and 312?
In this case, because the pilot plant operation does not manufacture products for
sale, the hazardous chemicals would be exempt. The primary function of the
plant is research and testing.
83. Is a facility that manufactures household product* exempt from reporting;
under Sections 311 and 312 due to the household products exemption in Title
Section 31 He) exempts from the definition of "hazardous chemical" any substance
to the extent it is used for personal, family, or household purposes, or is present in
the same form and concentration as a product packaged for distribution and use
by the general public. This exclusion applies to household or consumer products,
either in use by the general public or in commercial or industrial use when the
product has the same form and concentration as that intended for use by the
public. It also applies to these products when they are in the same form and
concentration prior to distribution to the consumer, even when the substance is
not intended for use by the general public. The term "form" refers to the
packaging, rather than the physical state of the substance. However, the
manufacturer is exempt from reporting the manufactured product only when the
product is in the final consumer form. The manufacturer is not exempt from
reporting the raw or processing materials.
M. A facility purchases sheets of metal in order to manufacture its final
product. A MSDS is received with this order. Must this be reported under
Sections 311 or 312?
OSHA's Hazard Communication Standard (HCS) exempts from the definition of
"hazardous chemical" those substances such as "articles" which are
manufactured items:
• Formed to a specific shape or design during manufacturing,
• Which have an end use function dependent upon that shape or design,
• To the extent they do not release or otherwise result in exposure to a
hazardous chemical under normal conditions of use (see 29 CPR
1910.12000))).
However, if the sheet metal's use has the potential to expose downstream
employees in a different facility to a hazardous chemical, the manufacturer must
prepare or have available an MSDS for that item, even if the manufacturer's own
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use of the item in its own facility does not have the potential to expose it's own
employees to hazardous chemicals. Therefore, primary and secondary
metalforming operations are not exempt from OSHA's HCS.
Section 311(eX2) exempts, "any substance present as a solid, in any manufactured
item to the extent exposure to the substance does not occur under normal
conditions of use." EPA interprets this exemption for solids to be broader than
OSHA's exemption for "articles". Under Sections 311 and 312, hazardous
chemicals at the worksite are reported to state and local government officials and
the information is made available to the public. The purposes of Sections 311 and
312 reporting are to inform the local community of the presence of chemicals that
could potentially cause a release and thus, merit public concern. Considering
this purpose, EPA does not believe that Congress intended local communities to be
notified of the presence of hazardous chemicals that raise no potential for release
as they are used in that particular community.
Therefore, facilities performing traditional metalforming operations should be
exempt from Section 311 and 312 reporting requirements because within these
facilities the use of sheet metal does not cause a release of, or otherwise result in
exposure to, a hazardous chemical within the sheet metal. The sheet metal used
at these facilities would be exempt from Sections 311 and 312 reporting
requirements whether or not they are required to prepare or have available an
MSDS under the HCS.
Facilities that perform secondary operations would not be exempt from Sections
311 and 312 reporting requirements. Within these facilities, the use of sheet metal
may cause a release of, or otherwise result in exposure to, a hazardous chemical. I
This potential for exposure renders the sheet metal used at these facilities
ineligible for Section 3ll(eX2)'s exemption from Sections 311 and 312 reporting
requirements.
85. Pipeline* and similar transport system* have been included in the recent
OSHA expansion (£B August 24,1987). Must the "storage" materials in these
facilities be reported under Section* 311 or 312?
Materials in pipelines are included in the general exemption for substances in
transportation from all requirements under Title III except Section 304 release
reporting. Therefore, despite the new coverage of these facilities under OSHA, the
materials in pipelines are not subject to Sections 311 and 312.
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86. A transportation firm owns a pipeline that transports oil to an intermediate
storage tank at their pumping station. At the pumping station the oil is sold and
sent by a secondary pipeline to the purchaser. The transportation firm also owns
the secondary pipeline until the pipeline reaches a valve in front of a purchaser's
The transportation firm sends 10,000 gallon* of oil to the intermediate storage
tank Of this oil, 5,000 gallons are purchased by company A, so the transportation
firm then directs the 5,000 gallons into the pipeline leading to company A. Is the
oil stored in the intermediate storage tank exempt from Sections 311 and 312
reporting under Section 327 transportation exemption?
Section 327 of SARA Title III exempts from any Title III reporting requirement,
other than the Section 304 notification obligation, substances or chemicals in
transportation or being stored incident to transportation, including the
transportation and distribution of natural gas. In a final rule promulgated April
22, 1987 (52 EE 13378) the Agency interpreted this provision to exempt from Title
III reporting the transportation of substances in pipelines. The Agency stated,
"Title III does not apply to the transportation of any substance or chemical,
including transportation by pipeline, except as provided in Section 304."
As Title III does not itself define "pipeline," the Agency will refer to the definition
found in regulations implementing the Hazardous Materials Transportation Act
(HMTA) and promulgated by the Department of Transportation. EPA believes the
HMTA to be appropriate as a reference because of Congress' explicit reference to
that Act in the legislative history referring to the Section 327 transportation
exemption. In the Conference Report, Congress stated that limiting the
exemption for storage incident to transportation to those chemicals under active
shipping papers was consistent with the HMTA.
Department of Transportation regulations implementing the HMTA define
"pipeline" as "all parts of a pipeline facility through which a hazardous liquid
moves in transportation, including, but not limited to, line pipe, valves and other
appurtenances connected to line pipe, pumping units, fabricated assemblies
associated with pumping units, metering and delivery stations and fabricated
assemblies therein, and breakout tanks." (49 CFR 195.2) "Breakout tanks" in
turn, are defined under these same regulations as "a tank used to (a) relieve
surges in a hazardous liquid pipeline system or (b) receive and store hazardous
liquid transported by pipeline for reinjection and continued transportation by
pipeline."
Because the intermediate storage tank owned by the transportation firm described
above receives and stores hazardous liquid transported by pipeline for reinjection
and continued transportation by pipeline, it meets this definition of "breakout
tank" included within the Department of Transportation definition of "pipeline."
Therefore, EPA would interpret that the oil contained in such an intermediate
tank would be exempt from reporting under the Section 327 transportation
exemption.
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87. Under Section* 311 and 312, must a farmer report the fertilizer*, pesticide*,
substances he uses to protect his crop*?
Farming operations that include a manufacturing facility (within Standard
Industrial Classification (SIC) Codes 20-39) presently are subject to Sections 311
and 312. In additions, farming facilities not within these SIC codes but covered
under the new OSHA expansion (£& August 24, 1987) generally are covered by
Sections 311 and 312 as of June 24,1988. As such, they should have complied with
Section 311MSDS or list requirements by September 24,1988, and with Section 312
inventory reporting by March 1,1989.
Even if a farming operation is covered under Sections 311 and 312, many of the
substances may still be exempt from most reporting requirements, tinder Section
311(e)(5), any substance-when used in routine agricultural operations—is
exempt from reporting under Sections 311 and 312. This exemption is designed to
eliminate the reporting of fertilizers, pesticides, and other chemicals substances
when stored, applied, or otherwise used at the farm facility as part of routine
agricultural activities. This exemption would also include the use of gasoline and
diesel to run farm machinery and also paint to maintain equipment. Thus, the
storage and use of a pesticide or fertilizer on a farm would be considered the use of
a chemical in a routine agricultural operations and is, therefore; exempt under
Sections 31 land 312.
88. Would a farm supplier or retail distributor be excluded from Sections 311
and 312 reporting bated on the agricultural exemptions?
Under Section 311(eX5), retailers are exempted from the reporting requirements
for fertilizers only. Therefore, substances sold as fertilizers would not need to be
reported under Sections 311 and 312 by retail sellers. However, other agricultural
chemicals, such as pesticides, would have to be reported by retailers and
suppliers of such chemicals.
89. How are the activities of "farm cooperatives" interpreted for reporting
purposes?
Farm cooperatives would be subject to Sections 311 and 312 reporting
requirements.
90. How are arms with ten or fewer employees covered under Sections 311 and
312 of Title m?
Sections 311 and 312 apply to any facility covered by the OSHA Hazard
Communication Standard (HCS). On August 24,1987, OSHA revised its HCS (52
EB. 31852) to expand the scope of the industries covered by the rule from the
manufacturing sector (in Standard Industrial Classification (SIC) codes 20-39) to
all industries where employees are exposed to hazardous chemicals (SIC codes 1-
89). However, this expansion would not include farms with ten or fewer
employees. This is due to a recent Congressional "rider" to OSHA's
June 1,1989
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Appropriations Bill which prevents OSHA from promulgating and enforcing
regulations for farms with ten or fewer employees. Therefore, since farms with
ten or fewer employees are not covered by OSHA, they would not be covered under
Sections 311 and 312.
91. An animal refuge spray* herbicide* and pesticide* on it* ground* to better
the quality of the area for the animal inhabitant*. l» the spraying of thece
> pesticide* exempt from the requirement* of Section* 311 and 312 of Title n under
the exception to the definition of "hazardou* chemical" for "any fuhttance to the
extent it i* used in routine agricultural operation*?"
The exemption for routine agricultural use under Sections 311 and 312 is designed
to eliminate the reporting of many of the chemicals routinely used by farmers.
The animal refuge is not spraying the chemicals for the production of food crops
and the refuge is not in the food crop production business. Therefore, the refuge's
spraying of herbicides and pesticides would not be considered routine agricultural
operations and thus, not exempt from Sections 311 and 312 reporting.
92. Tobacco and tobacco products are exempt from reporting under Section* 311
and 312. Doe* tbi* mean that nicotine extracted from the tobacco i* also exempt?
No. Current OSHA regulations exempt tobacco or tobacco products under the
definition of a hazardous chemical. Since Sections 311 and 312 incorporate this
definition of hazardous chemicals, this exemption applies only to the tobacco and
tobacco products. However, nicotine, when extracted from the tobacco, is not
exempt because it is not a tobacco product.
93. Are mining facilities required to notify
Mining facilities regulated by the Mining Safety and Health Administration,
(MSHA) are not subject to OSHA's Hazard Communication Standard (HCS) and,
therefore, are not subject to the Sections 311 and 312 requirements. However, it
should be noted that because MSHA covers only actual mining activities, all other
operations, such as refining, are covered under OSHA's HCS and are thus subject
to Sections 311 and 312.
94. Are petroleum product* exempt from the reporting requirement* of
Section* 311 and 312?
Petroleum products are not specifically exempted from Sections 311 or 312
reporting. However, some products could fall under the exemptions listed in
Section 3 ll(e).
95. I* household heating fuel exempt from the Section* 311 and 312
requirement*?
Section 311(e)(3) exempts, "any substance to the extent it is used for personal,
family or household purposes, or is present in the same form and concentration
as a product packaged for distribution and use by the general public." This
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household product exemption does not apply to the use of household heating oil at
business building for heating purposes. This exemption was intended by
Congress and EPA to apply to packaged products as opposed to substances
transported in bulk, that are distributed to the general public in a form with
which the general public is familiar. EPA stated in the preamble to the final
regulations, "Thus a substance may be packaged in small containers when
distributed as a household product but transported or stored in bulk quantities
when used for other purposes. Even though in the same concentration as the
household product, a substance may pose much greater hazards when present in
significantly larger Quantities. In addition, while the general public may be
familiar with the hazards posed by small packages of hazardous materials, they
may not be as aware of the hazards posed by or likely location of the same
substances when transported or stored in bulk" 52 ER 38344,38348 (October 15,
1987).
Fuel oil used for heating business buildings is not transported or distributed in
small containers. Rather, the heating oil is transported in bulk by truck and
dispensed into storage tanks at the business address. Just as the heating oil is not
"packaged "when being transported in bulk by truck, it is not "packaged" when
dispensed into a storage tank at the business site. Although heating oil is present
in the same concentration and used for the same purposes at both a household
and a business, only fuel oil used at a household would be exempt and only under
the first clause of the exemption ("any substance to the extent it is used for
personal, family or household purposes"). Therefore, heating oil used at business
buildings is not exempt from Sections 311 and 312 reporting requirements.
96. Considering the OSHA expansion to the non>manufacturing sector,
State facilities required to meet the notification requirements of Sections 311 and
312 of Title
No. Sections 311 and 312 apply to owners and operators of facilities who must
prepare or have available an MSDS under the Occupational Health and Safety Act
of 1970 (OSHA) and its implementing regulations. OSHA does not apply to State
governments. (OSHA applies to "employers" and States are specifically excluded
from the definition of "employers.") Although States may choose to administer
their own occupational safety program in lieu of the Federal government's OSHA
program, such a program must be administered exclusively under State law.
Furthermore, unlike State-administered programs under some environmental
statutes (e.g., RCRA), the State standards do not become Federal standards once
the State plan is approved by the Occupational Health and Safety Administration.
Thus Sections 311 and 312 do not apply to State facilities because OSHA and its
implementing regulations do not apply to State facilities.
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PREEMPTION
(Section! 311 and 312)
97. What effect will Section* 311 and 312 requirements have on
and local "RighHo-Know" programs?
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?
What facilities are covered?
Is information publicly available?
What are the reporting periods and frequency of reports?
Under what conditions can trade secret protection be granted?
Existing Right-to-Know programs that meet (or exceed) the basic requirements of
Title III will 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.
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TRADE SECRET
98. 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 trade secrecy
claim under Section! 311,312, and 313. 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 confidentiality 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?
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."
99. A facility was not aware that all confidential business information (CBD
could be deleted from a sanitized trade secret substantiation. As a result, when
they filed using the proposed trade secret substantiation form, they only deleted
the chemical identity and did not delete the CBI from the sanitized substantiation,
Since all proposed Substantiation Form submissions must be updated to reflect
changes made in the final form, the facility can delete all CBI from the final
sanitized Substantiation Form. Can the facility find out if anyone has requested
their proposed sanitized Substantiation Form? Also, can the mcOity retrieve their
proposed rule sanitized substantiation to prevent diadoauve of their CBI?
All trade secret claims have been isolated and protected from disclosure. As soon
as the updated trade secret claim is received, the proposed Substantiation Form
may be returned to the submitter upon request. Sanitized substantiations, are
and have been generally available to the public, and the Agency does not have a
record of who has viewed particular submissions. Therefore, it is not possible to
definitely state that a particular sanitized substantiation form has or has not been
viewed by a member of the public. Since sanitized substantiations were also sent
to the appropriate State authority, the facility must check with the individual State
on their procedures regarding updated claims and previously submitted sanitized
substantiations.
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100. A fhCTIP""! «M»|MMiy in T^mlaiaTia ftlad thgir SartJQM 311 Mill 319 nBp*"*" hy
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 rh**1^^! A, chemical B and mixture. C containing A «*«H
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 —Le., 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?
Federal requirements for Sections 311 and 312 reporting state that a facility may
report on the mixture as a whole (mixture C) or on the mixture's hazardous
components individually (i.e., chemicals A and B). It does not require that a
facility do both. However, the State of Louisiana is requiring information above
and beyond the Federal requirements in that it is requiring identification of both
mixture C as a whole, and on the chemicals A and B present in that mixture.
The company must comply with both State and Federal reporting requirements.
Since Federal reporting requirements do not require that the chemical
components , A and B, and the name of the mixture C be identified, no trade
secrecy claim needs to be made under Federal law. These components must be
identified under State law, however, and if the company wishes to protect the
chemical composition of mixture C as trade secret, it must do so under Louisiana
State law. A copy of the State trade secrecy claim does not need to be sent to EPA.
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TOXIC CHEMICAL RELEASE REPORTING
101. A facility is competed of two (2) separate establishments and is filing a
separate Form R for Section 313 reporting; for each establishment For Part I
Section 3J5, what Standard Industrial Classification (SIC) codes are to be listed by
The SIC coded) of the establishment(s) whose data is included in each Form R are
the only one(s) needed to be entered in Part I Section 3.5 of Form R. The other SIC
code(s) for the other establishments) of the facility would be included in their own
Form R submittal.
102. To file the toxic chemical release report for Section 313, how would a
compound that alls into two reporting categories be reported (Le, PbCrOs)?
A compound that has constituents in two toxic categories would have to be
included under both categories when submitting a toxic chemical release
reporting form. In the example indicated, the total weight of PbCrOs must be
included in determining the threshold for both lead and its compounds and in
determining the threshold for chromium and its compounds. In reporting the
releases of lead, only the stoichtometric weight of the lead released in PbCrOs
would be included. Likewise, only the chromium in PbCrOs that is releases
be included in the Section 313 reporting form.
103. Sodium hydroxide if listed aaa toiic chemical with a qualifier of "solution"
A facility has sodium hydroxide in the solid form. At one point in their process,
the facility heats up the sodium hydroxide to 900T. At this point, the sodium
hydroxide tumf into the molten state. Is the liquid molten sodium hydroxide
considered to be a "solution" for the purpose* of Section 313 of Title m?
Sodium hydroxide solution is essentially a mixture of sodium hydroxide dissolved
in a liquid. The molten sodium hydroxide in its pure form would not meet this
requirement; therefore, the molten sodium hydroxide would not be considered a
sodium hydroxide solution.
104. A facility has determined that it need* to report under Section 313 for both
elemental lead as well as lead compounds. Can this facility file one EPA Form R
that takes into account both the rrteasfa of lead and lead compounds or are they
required to report separately?
According to EPA, if a subject facility exceeds thresholds for both the parent metal
and compounds of that same metal, it is allowed to file one joint report (e.g., one
report for lead compounds and elemental lead). EPA allows this because the
release information reported in connection with metal compounds will be the total
pounds of the parent metal released.
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105. Are castings, which contain nickel, exempt from reporting on the Toxic
Chemical Release Reporting Form under Section 313?
The final rule for Section 313 (53 £fi. 4528) contains an exemption for toxic
chemicals present in articles. An article is defined as "a manufactured item": (i)
which is formed to a specific shape or design during manufacturing; (ii) which
has end use functions dependent in whole or in part upon its shape or design
during end use; and (ill) which doea not release a toxjp ghfl!Tv'CB] Wider normal
conditions of processing or use of that item at the facility (emphasis added). An
item will not qualify as an article if there is a release of a toxic chemical from the
normal use or processing of that item. If under normal conditions of processing
or use, the metal casting is ground or cut in a way that would release nickel, a
listed toxic chemical, it would not qualify for the article exemption. Therefore,
releases would have to be reported if the amount of nickel processed or used in
this way exceeded the appropriate reporting threshold. In addition, the
exemption for toxic chemicals in articles applies only to the processing or use of
the article. The person producing the article would be required to report toxic
chemicals manufactured, processed, or otherwise used to produce the article.
106. If a manufacturer of transportation equipment (airplanes) is required to
report a Form R for Section 313 for their use* of benzene as a component in jet
fuel, must the facility include emissions of this benzene when the jet fuel is used
to power the equipment in an off-site test run?
The facility would not have to include these emissions of benzene which is
consistent with the laboratory use exemption under 40 CFR 372.38(d). The usage
of benzene in this manner would be considered as being used for product testing,
therefore, emissions due to this product testing would not need to be reported
under Section 313.
107. A single company owns many facilities which are required to report under
Section 313. The company stores gasoline at one of the £acilitie«. The gas is used
by trucks from all of the facilities, which come to the central location for fuel and
then leave. Is the gas in the storage tank exempt because it is used to maintain
motor vehicles even though they are operated from different facilities?
Since those trucks are being driven to the one facility site to be fueled, they can be
considered as being operated by that one facility. Therefore, the gasoline stored
and used by that one facility would be exempt from being reported as long as the
toxic chemical is used to maintain a motor vehicle operated by the facility as per
40 £EB Part 372.38
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108. A facility has a PCB transformer on site which they use for energy. During
the calendar year 1987, the PCB was removed from the transformer and disposed
of, Is the unount of PCB removed for disposal used to determine if the threshold
has been met and for release reporting purposes?
If the facility removes the entire transformer including the PCB laced oil as an
article, the amount of PCB in the article would not be included in Section 313
threshold and release reporting. According to 40 CFP Pan 372.28(b), if a toxic
chemical is present in an article at a covered facility, a person is not required to
consider the quantity of the toxic chemical present in such article when
determining whether an applicable threshold has been met or determining the
amount to be reported as a release.
If the facility removes the PCB laced oil from the transformer, this removal would
negate the article exemption. To determine if the facility exceeds a threshold, the
operator of the facility shall count the amount of the chemical added to the
recycle/reuse operating during the calendar year (40 CFS Part 372.25(e)).
If a facility has a transformer leaking the PCB laced oil, this leaking would also
negate the article exemption. To determine if the facility exceeds a threshold,
again, the owner or operator of the facility shall count the amount of the chemical
added to the recycle/reuse operation during the calendar year.
The facility would be "otherwise using" the PCB added to the transformer
(ancillary use). Only the amount of PCB added to the transformer needs to be
aggregated for threshold determination, and the facility will most likely not be
adding PCB laced oil to the transformer. Therefore, it is unlikely that the faci
will exceed the 10.000 pound "otherwise use" threshold. The facility, therefore,
would not be required to report releases of the PCBs for Section 313.
If however, the facility exceeds the 10,000 pound threshold and needs to report
PCBs, the PCBa removed from the transformer and sent off-site for final disposal
would be a reportable release.
109. A manufs;cturingaciUty removes PCB-laoed oil that was contained in its
on-site transformers. Would this activity be considered a process or an otherwise
use of the PCB, a listed toxic chemical if the facility only extracts the PCB to
dispose of it eJMte?
If the PCB laced oil is removed from an on-site transformer for disposal and is not
replaced with clean PCB laced oil, this would not be considered a process or an
otherwise use. Removal of a toxic chemical from an article for disposal does not
constitute a process or otherwise use activity. Therefore, this activity would not be
subject to threshold determination and release reporting under SARA Section 313.
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110. Section 313 of title ID require* covered facilities to submit information on
their releases of certain toxic chemicals. The information is provided on EPA
Form R. Section 8 of Form R is presently an optional section on waste
minimization. If a facility chooses to fill out Section 8, they must provide
information about their waste minimization including the type of modification.
How should they indicate this on the form if they have more than one type of
modification?
The Form R only allows facilities to report one code for the type of waste
minimization. Since there is only room for one code type relating to the type of
modification, the facility should enter a code for the most prevalent type of
modification for the chemical that the facility is reporting,
111. Will titanium dioxide submissions for Form R, that were submitted prior to
the June 20,1988 delisting of this toxic chemical, be entered into the public
database?
All Form R's received at the Title III Reporting Center will be entered into the
database. This would include any titanium dioxide submissions received despite
the June 20th delisting of this chemical.
112. Under Section 313 a facility is required to provide the supplier notification
(40 OB Section 372.45). The product «*»"*•<"• nitric add, a listed toxic chemical
However, the concentration of nitric add in the product varies from batch to
batch. Can this facility give a range for the nitric add concentration in this
product in order to fulfill its supplier notification requirement?
According to the current language in the regulation (40 CFJjt Section 372.34(cX3)),
every time a concentration of a toxic chemical in a mixture changes, the supplier
is to provide an updated notification with the new concentration. Therefore, this
facility cannot provide a range of concentration value in order to fulfill the
notification requirement. Instead, the facility must provide a new notification
with each product that has a different concentration of a listed toxic chemical.
113. A facility is required to provide the Section 313 supplier notification (40 ££2
Section 372.45) for some of its pirM^M» ^hirh f»"*at« lifted frrric chemical(s). The
products contain antimony compounds, a listed toxic chemical category.
However, the facility considers the chemical names of the antimony compounds
in their products a trade secret Does this facility have to give the exact chemical
names of these antimony compounds in order to fulfill the supplier notification
requirements?
This facility's antimony compounds are not specifically listed in the Section 313
toxic chemicals list, however, they do fall into the antimony compounds category.
Since the specific names of the toxic chemicals are not listed, the facility does not
need to give each chemical name to fulfill the supplier notification requirement.
This facility needs to identify that the products contain an antimony compound
subject to Section 313 and indicate, the concentration of the compound in the
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mixture *so that their customers can make their threshold determination. The
facility should also indicate the stoichiometric amount of antimony in the
compound to aid their customers in calculating releases.
114. Can the information required in FormR be used lor criminal prosecution of
The Title III law contains no reference which states that the information cannot
be used for this purpose. Therefore, unless there is some other law which takes
precedence in this case, the Form R information may be used for this purpose.
115. The enforcement requirements of Title HI (Section 325), state that the civil
and administrative penalties for Section 313 non-compliance shall not exceed
$25,000 for each violation. Is a non«compliance violation determined on a per
facility or per toxic chemical basis? Also is that penalty Minted on a per«day
Section 325(c)(i) states that "any person who violates any requirement of Section
313 shall be liable to the United States for a civil penalty in an amount not to
exceed $25,000 for each violation." Also, Section 325(cX3) states "each dav a
continues shall, for the purposes of this subjection, constitute a separate
violation" (emphasis added). The requirements of Section 313 are that the owner
or operator of a covered facility must submit a Form R for each toxic chemical that
exceeds a specified threshold. Therefore, the facility can be assessed a penalty for
each Form R not submitted or for submitting a Form R that is not in compliance
with the rules promulgated under Section 313 (40 CFR Part 372). The penalty can
be assessed on a per-day basis.
EPA has prepared an additional Toxic Release Inventory Questions and
document which can be obtained by writing:
The Emergency Planning and Community
Right-to-Know Document Distribution Center
P.O. Box 12505
Cincinnati, OH 45212
Document f EPA 560/4-89-002
June 1,1989
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HOW THE EMERGENCY PLANNING
AND COMMUNITY RIGHT-TO-KNOW ACT
AFFECTS VARIOUS TYPES OF FACILITIES
116. Are farmers tutyect to Title HI? If so, why? What exactly do Carmen have
to do?
There are four major reporting requirements under Title XII: emergency
planning notification (Section 302), emergency release notification (Section 304),
community right-to-know (Section 311 material safety data sheets and Section 312
emergency and hazardous chemical inventory forms) and toxic chemical release
forms (Section 313 "emissions inventory"). Each reporting provision has different
requirements for chemicals and facilities covered. Due to this complexity in the
statute itself, each Section must be read carefully to understand the chemicals
covered and the facilities to which the Section applies. Farmers may be subject to
several of the reporting requirements of Title III.
* Emergency Planning Notification (Section 902)
Farm owners and operators are most likely to be subject to the emergency
planning requirements of Section 302. Farms were not exempted from this
provision, since the law was designed to generally identify all facilities that have
any of the listed 366 extremely hazardous substances present in excess of its
threshold planning quantity (TFQ). The TPQ is based on the amount of any one of
these substances which could, upon release, present human health hazards
which warrant emergency planning. The TPQ emergency planning trigger is
based on these public health concerns rather than the type of facility where the
chemicals might be located. The type of facility and degree of hazard presented at
any particular site, however, are relevant factors for consideration by the local
emergency planning committees.
For many farms, chemicals in these quantities may not present a significant
hazard to their communities due to their rural location or short holding times,
other farms may well present a potentially significant hazard if the chemicals are
located in a suburban, populated area or near a school, hospital, or nursing
home. Even in a rural area, large volume storage could be a concern. Although
these substances may only be stored or used periodically, there is always the
possibility of accidents which could present a hazard to the community. Finally,
in the event of a fire or other emergency on the farm, local responders should
know what chemicals they might encounter in order to take appropriate
precautionary measures. The hazards posed by an individual farm or ranch
must be evaluated on a site-specific basis. Communities must know which
facilities may present a potential for chemical releases so they can determine the
nature of the risk to the public And to emergency responders in the event of a
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release.' Title III established State and local planning organizations and
notification requirements to meet these needs. Local emergency planning
committees can best address these concerns by working with farm
representatives.
To meet the emergency planning requirements of Title III, farm owners and
operators must determine if they have any of the listed 366 substances in excess of
the threshold planning quantity (TPQ) present on their farms at any one time in
concentrations greater than one percent by weight. This requirement applies
even if the chemicals are present for only a short period of time before use. There
is no exemption to this requirement for farms or for substances used in routine
agricultural operations.
If any of the 366 substances is present in excess of its TPQ, simply notify
(preferably in writing) the State emergency response commission (SERC) and the
local emergency planning committee. The notification need not include the
names and quantities of identified substances, but EPA encourages the inclusion
of such information because it will be useful to the SERC and the local committees
in organizing and setting priorities for emergency planning activities. This
notification was required by May 17, 1987 or 60 days after the TPQ is exceeded for
at least one extremely hazardous substance, whichever is later. If such
notification has not been made, farm owners and operators should do so
immediately.
This is a one-time notification. Once made, owners or operators are not required
to notify the SERC further of other extremely hazardous substances that may
become present on the farm; however, they may be required to inform the
emergency planning committee of such changes.
EPA may revise the list of extremely hazardous substances. A facility which has
any substances added to the list but which was not previously required to notify
must notify its SERC and local emergency planning committee within 60 days.
EPA does not have immediate plans to add substances to this list.
Farmers required to notify under Section 302 must designate representatives to
work with the local emergency planning committee to address any need for
emergency planning involving their farms. Local emergency planning
committees were to be established by the SERC by August 17,1987.
There is no requirement for farm owners or operators to develop a farm
emergency plan. A comprehensive emergency response plan is to be developed by
the local emergency planning committee for the local emergency planning
district it covers. This plan should address, to the extent possible, all potential
chemical release hazards in the district including, where appropriate, chemicals
on farms.
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. Emergency Release Notification (Section 304)
Farmers may also be subject to emergency release notification requirements
(Section 304) if they release any of the 366 listed extremely hazardous substances
or Superfund hazardous substances in excess of its reportable quantity (RQ).
Reportable quantities are the amounts of these substances which, if released,
must be reported. (RQs for Superfund hazardous substances are specified in EPA
regulations found in 40 CFR Table 302.4. The CFR is available in public libraries
and EPA Regional Offices). Section 304 requires reporting of such releases to
SERC and local emergency planning committees. Reporting of releases of
Superfund hazardous substances to the National Response Center (1-800-424-8802)
has been required since 1980. Section 304 also requires a written follow-up
emergency notice to the SERC and local emergency planning committee.
Exempted from reporting are pesticides registered under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) when used generally in accordance with
its intended purpose. Also, normal application of fertilizer would not need to be
reported. However, an accidental release of such substances (or other release not
generally in accord with its intended purpose) in excess of the RQ must be
reported.
Title III emergency release notification (Section 304) has two limitations which
are not present in Superfund release reporting. First, Title HI (Section 304)
release reporting applies only to facilities which produce, use, or store a
"hazardous chemical." Because the definition of "hazardous chemical" in Title
III specifically excludes substances used in routine agricultural operations and
household or consumer products, some farms or ranches will not be subject to
Section 304. Secondly, releases reportable under Section 304 will include only
those releases which have potential for off-site exposure and which equal or
exceed the applicable reportable quantity for that substance. Thus, spills of
pesticides which would require release reporting to the National Response Center
under Superfund, would not be subject to local and State reporting under Section
304 unless there were a potential for off-site exposure.
* Community Right>to-Know (Section* 311 and 312)
Community right-to-know reporting (Sections 311 and 312) is limited to those
facilities required to prepare or have available MSDSs under the Occupational
Safety and Health Administration's Hazard Communication Standard (HCS).
Sections 311 and 312 became applicable beyond the manufacturing sector
beginning September 24, 1988, as a result of the expansion of OSHA Hazard
Communication Standard, but chemicals used in routine agricultural operations
and households products will not be subject to these reporting requirements.
Chemicals used for such purposes are excluded from the Title III definition of
"hazardous chemical" to which the reporting requirement applies. In addition,
farms with ten or less full-time employees are not covered by the HCS and,
therefore, are not covered by Sections 311 and 312.
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• Toxic Chemical Rdeue Fonas (Section 313)
Toxic chemical release reporting (Section 313) is limited to facilities in SIC codes
20-39 with 10 or more full time employees, and may apply to farms or ranches
with on-site manufacturing operations.
• Other Provident
Title III also includes various provisions for civil, administrative and criminal
penalties and citizen suits for failure to comply with the requirements of the law.
For assistance in meeting these requirements, farmers may call on their State
and county offices of the USDA Agricultural Stabilization and Conservation
Service, which have the list of 366 chemicals, their TPQ's and RQs, and a list of
SERCs. They may also call EPA's Emergency Planning and Community Right-
to-Know Information Hotline at 1-800-535-0202.
117. Are Federal mdlitiea subject to Title m?
Since Federal facilities were not included in the definition of person, EPA
interprets Title III to exempt Federal facilities from the Title III provisions.
However, Federal facilities are being encouraged to comply with all Title III
provisions. Through the National Response Team and contacts with other
Federal agencies, Federal facilities have indicated that they intend to comply with
the Title HI requirements except in cases of national security interests.
118. Doee a extractor for a Federal gover
Title in requirement?
it facfflty need to comply with
Yes. Federal government facilities are exempt from reporting due to omission of
Federal facilities from the definition of "person" in the Title III statute. Thus, the
definition excludes the federal government from being covered by the Title III
provisions. However, the definition does include any other individual or private
firm even if he or she is working under a contract for a Federal agency.
Therefore, all government-owned, contractor-operated facilities are required to
comply with any requirements that they may be subject to under Title III of
SARA.
1 19. The term "government corporation
'person" (Section 828). Row should thi* term
facilities are exempt under Title m, does thi* term include Federal government
appear* in the Title ED definition of
i be defined and, i
In general, a "government corporation" refers to a corporation established and
organized by a governmental unit and which is owned or controlled by a
governmental unit. Government corporations include State, local and Federal
corporations and are likely to be listed in the legal code of the relevant
governmental entity. For purposes of Federal government corporations, Congress
has defined the term "government corporation" in 31 U.S.C. Section 9109. Under
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this provision, a Federal government corporation refers to a "mixed-ownership
government corporation" and a "wholly owned government corporation." Section
9109 goes on to list the Federal government corporations that meet this definition
(e.g., Amtrak, FDIC, Export-Import Bank, Commodity Credit Corporation, etc.)
As to the second part of the question, whether the sovereign immunity of the U.S.
government extends to Federal government corporations in the Title III context,
the answer is generally no, as Congress has not accorded government
corporations the same immunity that the United States itself possesses. That is,
Federal government corporations are usually invested with the power "to sue and
be sued." The U.S. Supreme Court has read this language to mean that Congress
waived sovereign immunity for the government corporation. While courts have
limited the sovereign waiver resulting from the "sue and be sued" language in
specific contexts, the express inclusion of government corporations within the
Title III definition of "person" makes it unlikely that Congress intended to relieve
Federal government corporations of the obligation to comply with the Act. Thus,
Federal government corporations as defined in 31 U.S.C. Section 9109 are subject
to the requirements of Title III.
120. Are i*nHnn« covered under Title m of SARA since they are covered by
Resource Conservation and Recovery Act (RCRA)?
Subtitle A of Title III is intended to identify facilities which present a potential
hazard for a chemical emergency and to provide a process for local emergency
planning committees to work with such facilities in determining the significance
of the release hazard and developing response plans to facilitate timely and
appropriate response in the event of a chemical spill.
While EPA agrees that conditions at some facilities (including landfills) may not
pose significant chemical hazards even though extremely hazardous substances
are present in excess of the threshold planning quantity, in other such facilities
conditions will exist which do present a significant hazard. Such assessments
must be made on a site specific basis. EPA believes that leaving such decisions to
the local emergency planning committees is consistent with the purpose of
Subtitle A. Communities must know which facilities may present a potential for
chemical emergencies so they can determine the nature of the risk to the public
and to emergency response personnel.
It is recognized that RCRA regulations already address many of the goals of
Subtitle A of Title III. However, it is important that the facility contingency plan
and local coordination required by RCRA be coordinated with any new State and
local planning structure or community planning process established under Title
III. Full compliance with the RCRA requirements should minimize additional
planning activities with local committees under Title III. Therefore, these
requirements are not duplicative.
It should be noted that landfills may not be covered under the other sections of
Title III. The placing of a container of an extremely hazardous substance into a
landfill which has a federal permit for this chemical is exempt from the Section
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304'emergency release notification. Also under Subtitle B, Sections 311 and 312,
most substances at landfills would be exempt due to the exemption for any
hazardous waste such as defined by the Solid Waste Disposal Act under the OSHA
Hazard Communication Standard (only hazardous chemicals for which a MSDS
must be prepared or available under the OSHA Hazard Communication Standard
must be reported under Sections 311 and 312). In addition, landfills generally do
not fall into the SIC codes 20-39 covered by the Section 313 Toxic Chemical Release
reporting requirements (however, they may be covered if they have
manufacturing operations on-site).
121. How are the quantities of the extremely hazardous substances (EHS) to be
calculated in determining whether »p«dffoy are subject to the Section 302
requirements?
EPA recognizes the practical problems presented for landfills in whether they
contain any EHSs in excess of the threshold planning quantities (TPQ). However,
owners and operators of landfills may base their calculations on the one percent
exclusion rule (see 40 CFR 355.30XaXD>, which says that if the total weight of an
extremely hazardous substance is greater than one percent of the total weight of
the landfill waste and equals or exceeds the TPQ for that substance, the landfill is
subject to Section 302 notification requirements. If no EHS exceeds the level, the
landfill is not subject to the emergency planning requirements under Title III
unless designated by the Governor or SERC under Section 302(bX2). A local
emergency planning committee may, depending on assessment of the hazards
posed by a 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, the landfill owner or operator and the local emergency
planning committee should work in cooperation to ensure that potential chemical
emergencies are addressed.
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