L-R: Stephen J. Matzura, Errin T. McCaulley, Jr. and Scott A. Gould of McNees Wallace & Nurick.

The Emergency Planning and Community Right-to-Know Act (42 U.S.C. Section 11001 et seq., EPCRA) may not be as famous as the Clean Water Act or Clean Air Act, but EPCRA affects a large number of industries across the United States. As a consequence, businesses of all types should be familiar with the various requirements imposed by EPCRA and the potentially costly consequences for failing to do so, such as enforcement actions by the federal Environmental Protection Agency (EPA) and disruptions to your business' operations. This article briefly summarizes EPCRA's reporting requirements, exemptions and a recent EPA rulemaking with important implications for Pennsylvania agriculture.

EPCRA Basics: Structure and Reporting Requirements

EPCRA imposes four levels of reporting requirements on industry concerning the storage, use, and release of hazardous substances. Reporting is required not only to federal and state agencies, but also to local governmental authorities. Under EPCRA, each state is required to establish a state emergency response commission (SERC), which further divides the relevant state into individual emergency planning districts with each district having its own local emergency planning committee (LEPC). EPCRA's reporting requirements work within this framework as an individual facility must necessarily report EPCRA-covered activities to the appropriate governmental authority (EPA, SERC and LEPC).

EPCRA Section 311: MSDS/SDS Reporting

The first reporting level under EPCRA Section 311 applies to facilities that are required to prepare or maintain material safety data sheets (MSDS), now known simply as safety data sheets (SDS), by the Occupational Safety and Health Administration's Hazard Communication standard, and exceed the applicable threshold for the substance at issue (e.g., 10,000 lbs for most substances or either 500 lbs or the “threshold planning quantity” (TPQ) for “extremely hazardous substances” (EHS). If a facility meets both criteria, then the facility must comply with the one-time reporting requirement under Section 311 by submitting either an MSDS or SDS to the appropriate LEPC, SERC, and local fire department for each hazardous substance that exceeds the applicable threshold.

EPCRA Section 312: Tier I/II Reporting

The second EPCRA reporting requirement is commonly referred to as Tier I or II inventory reporting and applies to those facilities that are required to comply with the MSDS/SDS reporting requirement described above. Technically, the EPA's regulations only require covered facilities to complete Tier I reporting, but many states, including Pennsylvania, have opted to require a more thorough Tier II inventory report. Facilities in Pennsylvania must use Pennsylvania's Tier II System, known as PATTS, to comply with Section 312. Overall, the Tier I and II inventory reports require covered facilities to provide various information, such as the facility's location, hazardous chemical inventory estimates and corresponding Chemical Abstract Service registry numbers.

EPCRA Section 313: TRI Reporting

The third level of EPCRA reporting, known as toxic release inventory (TRI) reporting, is required under EPCRA Section 313 and applies to facilities with 10 or more full-time equivalent employees that fall within certain standard industrial classification (SIC) or North American Industry Classification System (NAICS) codes, and manufacture, import, process or “otherwise use” a “toxic chemical” above specific quantities. As a practical tip, facility managers should check their facility's chemical inventory against the EPA's list of “toxic chemicals” and determine if any of those chemicals are or have been present at the facility above the specified threshold.  See 40 C.F.R. Sections 372.25, 372.27, and 372.28. If a facility meets each criterion, then either a Form R or Form A report must be completed and submitted annually to the EPA.

EPCRA Section 304: Emergency Release Notifications

The fourth major reporting requirement under EPCRA concerns releases of hazardous substances under EPCRA Section 304. Unlike the annual reporting requirement under Section 313, Section 304 is triggered by the actual release of a regulated substance. Generally, if a release of either an EHS or a hazardous substance listed under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) occurs, then the facility must notify the appropriate SERC, LEPC and the National Response Center. The EPA maintains a list of both EHS and CERCLA hazardous substances that must be reported under Section 304. See 40 C.F.R. Parts 355 and 302. After completing the initial report of a release, a facility is also required to submit a written follow-up notice to the appropriate SERC and LEPC detailing response actions and other relevant information concerning the release. Failure to notify any one of the agencies or to submit the follow-up notice to both the SERC and LEPC are considered violations of EPCRA.

Exemptions

Fortunately for the regulated community, EPCRA does include several exemptions.  Unfortunately, these exemptions are not clear in their application. For example, EPCRA excludes from regulation substances that are used in “routine agricultural operations,” but this phrase is neither defined in the statute nor in the regulations promulgated thereunder. Determining whether the use of a given substance qualifies for this exemption, therefore, requires a review of previous EPA determinations and guidance documents. Even then, however, close calls will persist, thus it is important for businesses to engage legal counsel familiar with the EPA's regulatory interpretations and experienced in negotiating with the EPA.

Another EPCRA exemption with broad implications for agricultural operations was recently clarified by the EPA. On June 4, EPA Administrator Andrew Wheeler signed a final rule exempting air emissions from animal waste from Section 304 of EPCRA, 84 Fed. Reg. 27,533 (June 13). This final rulemaking provides much-needed clarification to agricultural operations across the United States, including concentrated animal feeding operations (CAFOs), thus a basic understanding of the scope and limits of the rulemaking is necessary to ensure compliance and avoid potentially costly enforcement actions and civil penalties.

As applied to air emissions from animal waste (e.g., hydrogen sulfide, ammonia), Section 304 of EPCRA had previously caused confusion within the regulated community because agricultural operations and regulators were uncertain whether air emissions from animal waste were covered by Section 304 and, if so, how those emissions could be measured and reported.  Fortunately, the EPA's final rulemaking has resolved this uncertainty and grants agricultural operations a reprieve from undertaking the complicated task of calculating and reporting those emissions.

The exemption created by the EPA's final rulemaking is derived from the Fair Agricultural Reporting Method Act (FARM Act), which exempted the reporting of air emissions from animal waste under Section 103 of CERCLA, see Fair Agricultural Reporting Method Act, Public Law 115-141. Although CERCLA represents a wholly separate statutory and regulatory regime, the question of whether a given release is reportable under Section 304 of EPCRA depends in part on the interplay between these two statutes. Specifically, a release is subject to Section 304 of EPCRA if one of three different scenarios occur, each of which are tied to whether a release triggers the notice provisions of Section 103 of CERCLA. The first and third scenarios explicitly require the release to be subject to the requirements imposed by CERCLA. The second scenario, however, is slightly different in that the releases addressed by this provision are not subject to the requirements of CERCLA, but are reportable under Section 304 of EPCRA if the release is not federally permitted, exceeds the reportable quantity set by EPA, and (3) “occurs in a manner” that would require notification under CERCLA.

As the first and third scenarios for triggering the reporting obligations of Section 304 of EPCRA are tied explicitly to whether the release is subject to CERCLA, these two statutory provisions operate to exclude such air emissions from the reporting requirements of EPCRA. The second scenario, however, forms the heart of EPA's rulemaking and centers on whether air emissions from animal waste “occur in a manner” that would require notification under CERCLA. As noted by the EPA, the FARM Act's exemption operates to exempt the nature or manner of the releases associated with animal waste, rather than specific substances, such as ammonia emanating from poultry litter. Based on this rationale, the EPA's rulemaking establishes that air emissions from animal waste do not “occur in a manner” that would require notification under CERCLA.

Conclusion

Although the EPA's final rulemaking provides greater regulatory certainty regarding the applicability of EPCRA's reporting obligations, agricultural operations must keep in mind that the exemption only applies to air emissions from animal waste, thus other methods of release, such as directly into surface waters or the soil, may still trigger EPCRA's emergency notification provisions. Other exemptions under EPCRA, however, remain less clear and require a case-by-case analysis and an in-depth knowledge of the EPA's regulatory interpretations and guidance documents. In light of the uncertainty surrounding EPCRA's exemptions and the high stakes involved with the EPA enforcement actions, determining whether your business qualifies for an exemption or must complete a self-disclosure to correct past noncompliance necessitates involving experienced legal counsel early on to achieve the best possible outcome. For further guidance, any questions concerning how EPCRA may affect your business may be directed to the authors of this article.

Errin T. McCaulley Jr., an associate at McNees Wallace & Nurick, focuses his practice on energy and environmental law. 

Scott A. Gould is a member of the firm. He is chair of the environmental law and toxic tort group, a position he has held since 1998. He also practices in the oil & natural gas, food & beverage, and pipeline & oil/gas infrastructure groups where he provides experience environmental counsel to clients in those industry-based groups.

Stephen J. Matzura, an associate with the firm, advises industrial, commercial and municipal clients on a broad range of environmental, health, and safety (EHS) issues, including water quality, stormwater, water use, wastewater, waste, hazardous materials and safety, and air quality.