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EPCRA Frequent Questions - Sections 302-304
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SECTION 303 – COMPREHENSIVE EMERGENCY RESPONSE PLANS
SECTIONS 302 and 304 – EMERGENCY PLANNING AND EMERGENCY RELEASE NOTIFICATION
- Relationship Between Reportable Quantities and Threshold Planning Quantities
- Owner/Operator Responsibility
- Research Laboratories
- Substance Produced/Released During Incineration
- Subsurface Operations
SECTION 304 – EMERGENCY NOTIFICATION
- Entities to be Notified
- Chemicals Subject to Reporting
- SERCs and/or LEPCs Not Established
- Off-site Release
- Telephone Notification
- Written Follow-up
- Written Follow-up - Location and Cause of the Incident
- Written Follow-up - Location of the Incident
- Written Follow-up - Results of the Facility's Inspection
- Written Follow-up - Adverse Health Effects
- Facilities - Exemption
- Exempted Releases
- RQ into the Environment
- Reportable Quantities and De Minimis
- Reportable Quantity Determination
- Transportation-related Releases
- Responsibility of the Transportation Owners and Operators
- Transportation-related Releases: Written Follow-up
- Notification Requirements for an Emergency Release on a Public Roadway
- Notification of Transportation Related Release
- Pipelines, Barges, and Other Vessels
- Air Carriers
- Facility Definition and Rolling Stock
- Federally Permitted Releases
- Continuous Releases
- Mining
- Coincidental Production and Release of Hazardous Chemicals
- Abandoned or Discarded Barrels
- Stockpiling/Totally Contained
- Release Reporting Requirements: Liability and Civil Penalty
- Emergency Release Notifications & Trade Secret Substantiation Form
SECTION 303 – COMPREHENSIVE EMERGENCY RESPONSE PLANS
Hazard Analysis
Q. When calculating vulnerability zone distances, how would the quantity released (QR) be handled for an extremely hazardous substance (EHS) in solution?
A. 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.
(60 sec/min x MW x K x A x VP x 929cm2/ft2)
Equation (1) QR = ---------------------------------------------
R x (T1+273)x (760 mm Hg/atm) x 454 g/lb
Where:
QR = Rate of release to air (lbs/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 T1 mm HG);
R = 82.05 atm cm3/g mole K; and
T1 = Temperature at which the chemical is stored ( C).
If 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 solution, the weight fraction can be used instead of the mole fraction to estimate the QR
of the EHS.
SECTIONS 302 and 304 – EMERGENCY PLANNING AND EMERGENCY RELEASE NOTIFICATION
Relationship Between Reportable Quantities and Threshold Planning Quantities
Q. What is the relationship between RQs and TPQs?
A. 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 significant harm should an accidental release occur.
Owner/Operator Responsibility
Q. 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 the contractor required to make the notification to the LEPC? For Section 304 purposes, if a contractor bursts a tank at a facility and causes a release of reportable quantity (RQ) of an EHS, should the contractor or the owner/operator of the facility notify the community emergency coordinator?
A. For both Sections 302 and 304, a contractor could be considered an operator of the facility or of a portion of the facility depending on if he/she has enough authority. The definition of operator is not defined by statue or in the regulations. If the contractor is considered an "operator," he or she could be held liable for not making the required notifications under Sections 302 or 304. If no notification is made under sections 302 and 304, owner and operator will be held liable.
Research Laboratories
Q. Since certain chemicals at research laboratories are exempt from the definition of "hazardous chemicals" and thus possibly exempt from release notification requirements under Section 304, can this exclusion be extended to Section 302 planning requirements?
A. EPCRA defines "hazardous chemical" under Section 311 by reference to OSHA regulations. Under Section 311(e) "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" is excluded from the definition of "hazardous chemical." However, because the planning requirements are not tied in any way to the definition of "hazardous chemical," the "hazardous chemical" exclusion of Section 311(e) does not extend to Section 302. In addition, for emergency release notification purposes under Section 304, if a release of an extremely hazardous substance or CERCLA substance exceeds the reportable quantity and occurs on a facility that produces, uses, or stores a "hazardous chemical," the facility owner or operator must notify the required parties. Section 304 also states that releases of extremely hazardous substances and CERCLA substances are reportable under Section 304 only when they are released from a facility where "hazardous chemicals" are produced, used, or stored. Accordingly, the hazardous chemicals in the research laboratory are exempt from Section 304 emergency notification only if no hazardous chemicals are produced, used or stored at the facility, other than those used at the laboratory under direct supervision of a technically qualified individual.
Substances Produced/Released During Incineration
Q. If an extremely hazardous substance is not stored on-site but is produced in a process such as incineration, is it exempt from both threshold planning quantity calculation under Section 302 and release reporting under Section 304 if the release is covered by a Clean Air Act permit?
A. If the hazardous substance is produced on-site in a process such as incineration, it is considered present at the facility and subject to Section 302 reporting requirements (starting May 17, 1987 and continuing up to the present date) provided, of course, that the amount on site exceeds the threshold planning 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.
Subsurface Operations
Q. A petroleum company is drilling for oil contained in the ground below their facility. Would the hydrogen sulfide present in the ground be counted toward the threshold planning quantity (TPQ) for this extremely hazardous substance (EHS) under Section 302? Also, if there is a reportable release of this EHS above the reportable quantity (RQ) during this operation, would this release need to be reported under Section 304?
A. On July 26, 1990, (55 FR 30632), EPA revised the definition of facility to include manmade structures as well as all natural structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use. So, if the facility is generating hydrogen sulfide during its drilling operations, then the quantity they generate must be included in the TPQ determination for hydrogen sulfide. The facility is producing or causing the hydrogen sulfide to be present and is therefore subject to Section 302 reporting. A release of hydrogen sulfide above its RQ that affects persons off-site must be reported under Section 304 of EPCRA since the release would occur from the facility.
SECTIONS 304 EMERGENCY NOTIFICATION
Entities to be Notified
Q. Who must be notified when a release occurs?
A. 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).
Chemicals Subject to Reporting
Q. What chemicals are subject to reporting under EPCRA Section 304?
A. Chemicals subject to Section 304 notification requirements are CERCLA hazardous substances listed under 40 CFR Table 302.4 and the extremely hazardous substances listed under 40 CFR part 355 Appendix A and B.
SERCs and/or LEPCs Not Established
Q. What if the State commission and/or local committees must be notified of a release but have not yet been established?
A. 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 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, EPA encourages facilities to provide notifications to local emergency personnel such as 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.
Off-site Release
Q. How is an off-site release determined to be subject to Section 304 notification requirements?
A. 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.
Telephone Notification
Q. Do the CERCLA and EPCRA 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 incident if known, amount spilled, etc.?
A. The Agency does not believe that the notification specified in Section 304 should vary from the CERCLA notification in any significant way.
Written Follow-up
Q. 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?
A. Section 304(c) of EPCRA 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. EPCRA 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.
Written Follow-up – Location and Cause of the Incident
Q. Should the location and cause of an incident be included in the written follow-up report?
A. 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 incident should always be included in the follow-up report to provide information for local, State, and Federal officials for preparedness and prevention purposes.
Written Follow-up – Location of the Incident
Q. Regarding the written follow-up report to an incident, should location of the incident and the cause of the incident be included?
A. The April 22,1987 Federal Register (52 FR 13387) states that the location of the incident should definitely be included in both the initial and written follow-up reports. However, the cause of the accident is not addressed and it is not required in the regulations pursuant to Section 304 of EPCRA. EPA strongly encourages, but does not require the inclusion of the incident in the written follow-up report.
Written Follow-up – Results of the Facility’s Inspection
Q. Should the written notification also include results of a facility's inspection? An inspection may specify measures to be applied to prevent future releases.
A. 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.
Written Follow-up – Adverse Health Effects
Q. 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, in 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?
A. No. The health information contained in an MSDS is not specific enough to be of use by health professionals, especially if the chemical name is confidential on the MSDS. However if the MSDS does contain specific information, it should be reported in the follow-up emergency notice.
Facilities – Exemption
Q. What facilities are exempt from Section 304 notification requirements?
A. A facility itself can only be exempted if there are no hazardous chemicals present at the facility. The term "hazardous chemical," as defined under Section 311 of EPCRA, includes any substance which constitutes a physical or health hazard. This broad definition is borrowed from the Occupational Safety 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.
Exempted Releases
Q. Are there exemptions to Section 304 reporting requirements?
A. The statute provides several exemptions from notification. They are:
(a) "federally permitted release" as defined under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 Section 101(10);
(b) releases which results in exposure only to persons solely within the facility boundaries;
(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 initial
reporting of the release and statistically significant releases;
(e) application of a Federal Insecticide, Fungicide, and Rodenticide 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.
RQ into the Environment
Q. A facility has a spill of an extremely hazardous substance (EHS) in an amount greater that its reportable quantity (RQ). The spill occurs on a concrete floor that is inside a facility building. Before the spill can be cleaned up, a portion (less than RQ) of the EHS enters the outside atmosphere through the window. Persons in off-site buildings report smelling the chemical. Does the facility owner/operator have a reporting requirement under EPCRA, Section 304?
A. No. The reporting requirements codified at 40 CFR 355.40 apply when there is the "... release of a reportable quantity of any extremely hazardous substance or CERCLA hazardous substance." The definition of release further stipulates that the release must occur "...into the environment... ." [40 CFR 355.20] In this case, reporting is not required even though persons off-site are being affected by the spill because an RQ of material was not released "into the environment." To determine if reporting is required under EPCRA Section 304 for a spill of an EHS or CERCLA hazardous substance, first determine if an RQ of material has entered "into the environment" (as the phrase is understood under CERCLA). If an RQ has entered "into the environment", then there has been a release. A release must be reported unless a specific exemption from reporting applies [such as the exemption for releases affecting"....persons solely within the boundaries of the facility." 40 CFR 355.40 (a)(2)(i))].
Reportable Quantities and De Minimis
Q. Can the "de minimis" concept used in determining the threshold planning quantities in mixtures be applied in the determination of the reportable quantity for emergency release notification?
A. 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 at 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 Final rule (50 FR 13463).
Reportable Quantity Determination
Q. Hydrogen chloride gas is introduced into water to form hydrochloric acid. Saturation for this reaction occurs at 38 percent (%). Therefore, any hydrogen chloride present after the saturation point is reached, does not go into solution and will remain in the gaseous state. Can the reportable quantity (RQ) assigned to hydrochloric acid, a listed hazardous substance, be used for hydrogen chloride gas?
A. The RQ for anhydrous hydrogen chloride is 5000 pounds and applies to all forms of
hydrogen chloride. When determining a RQ for a form of hydrogen chloride that occurs in a
solution, the Clean Water Act (CWA) "mixture rule" will be used if the percentage of hydrogen
chloride in solution is known. For example: To determine the RQ of a product solution of water
and 35 percent (%) hydrochloric acid, the CWA "mixture rule" is applied as follows: divide the
RQ of hydrochloric acid, 5000 pounds, by the percentage (expressed as a decimal) of the
hydrochloric acid in solution, 0.35. The product of this equation is the RQ, in pounds, for the
previously described solution.
5000/0.35 = 14,286 pounds
If the hazardous substance occurs as a constituent of a hazardous waste, the same rule can be
applied when determining the RQ for the hazardous waste. If the percentage of the hazardous
substance in the waste is not known, however, the RQ for the listed or unlisted hazardous
substance constituent is to be used. When more that one hazardous substance is in product or
waste solution, always use the lowest applicable RQ for the solution.
Transportation-Related Releases
Q. How are transportation-related releases covered under Section 304?
A. 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.
Q. How does EPA define a "transportation-related release?"
A. 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.
Responsibility of Transportation Owners and Operators
Q. 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?
A. 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 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.
Q. In the case of transportation-related releases, should the emergency release notification requirements apply to the owner or the operator of the facility?
A. 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.
Transportation-Related Releases: Written Follow-up
Q. In the event of a release of an extremely hazardous substance (EHS) or a CERCLA hazardous substance above its reportable quantity (RQ), a facility owner/operator must immediately notify the State Emergency Response Commission (SERC) and Local Emergency Planning Committee (LEPC) of the incident (Section 304(b); 40 CFR 355.40(b)) and for CERCLA hazardous substances, the National Response Center (NRC). As soon as practicable after the release occurs, the facility owner/operator must submit a written follow-up emergency notice to the SERC and LEPC (Section 304(c); 40 CFR 355.40(b)(3)). In the case of a transportation-related release, Section 304(b) states that the emergency release notification requirements may be satisfied by providing notice to the 911 operator instead of the SERC and LEPC (40 CFR 355.40(b)(4)(ii)). Must the notifier submit a follow-up emergency notice after the initial 911 report?
A. Notification of a transportation-related release, including the requirement to submit a written follow-up notice, is satisfied by dialing 911 and providing the release information as described in 40 CFR 355.40(b)(2) to the operator (40 CFR 355.40(b)(4)(ii)). In the absence of a 911 number, the notifier may call the local operator to satisfy the emergency release notification requirements (Section 304(b)(1)).
Notification Requirements for an Emergency Release on a Public Roadway
Q. The EPCRA emergency notification regulations require facility owners and operators to immediately report releases into the environment of extremely hazardous substances or CERCLA hazardous substances if the releases exceed specific reportable quantities (40 CFR 355.40(a)). The notification must be provided to the appropriate State Emergency Response Commission and Local Emergency Planning Committee, except in the event of a transportation-related release where only 911 notification is required. The EPCRA emergency notification requirements do not apply when a release generates no potential for exposure to persons outside the boundaries of a facility (40 CFR 355.40(a)(2)(i)). If there is a release from a facility onto a public roadway that runs through the facility, will that release be reportable?
A. A release onto a public roadway must be reported under 40 CFR 355.40(a), since the release may result in exposure to persons outside the boundaries of the facility, (i.e., on the public roadway). A release is defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment" of designated substances (Section 329(8)). The environment includes, "water, air and land" (Section 329(2)). Therefore, a release into the environment, as defined in Section 329, onto a public roadway is potentially a reportable release. There is, however, a limited exemption under EPCRA that does not require reporting of any release which results in exposure to persons solely within the boundaries of a facility (40 CFR 355.40(a)(2)(i)). The definition of facility includes "all buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and which are owned and operated by the same person" (40 CFR 355.20). Since the public roadway is not owned or operated by the facility that spans it, the roadway itself is not part of the facility. As a result there is exposure to persons outside the facility. Therefore, the exemption for the reporting of releases that result in exposure to persons solely within the boundaries of a facility does not apply and the release must be reported.
Notification of Transportation Related Release
Q. An owner or operator of a facility from which there is a transportation related release may meet the emergency release notification requirement by providing the information specified in 40 CFR 355.40(b)(2) to the 911 emergency operator, or in the absence of a 911 emergency operator, to the regular telephone operator. (40 CFR 355.40(b)(4)(ii)). What must a facility owner/operator do if the telephone operator typically has a different procedure for handling emergency calls, e.g. connecting the caller directly to the police or fire department? Must the facility owner/operator provide all of the required information to the telephone operator even if the telephone operator does not want to accept it?
A. The alternative emergency release reporting method for transportation related releases was designed for transportation operators who may not know the telephone numbers of the relevant State and local entities. (April 22, 1987, 52 FR 13386) If a 911 emergency number is available, the owner/operator reporting the release should use it. If no 911 emergency number can be reached, the facility owner or operator must contact the telephone operator. The telephone operator may follow their own procedures for handling emergency calls. If their procedures are to take all of the caller's information, then it would be appropriate for transportation operators to supply them with the information required in 40 CFR 355.40(b)(2). If the 911 emergency operator's procedure requires connection of the caller to an emergency response agency, then the caller must report the release information to this agency.
Pipelines, Barges, and Other Vessels
Q. Do the Section 304 release notification requirements apply to pipelines, barges, and other vessels as well as to other transportation facilities?
A. 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.
Air Carriers
Q. 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?
A. 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.
Facility Definition and Rolling Stock
Q. The definition of "facility" under EPCRA Section 329 states that "(f)or purposes of Section 304, term [i.e., facility] includes motor vehicles, rolling stock, and aircraft." The term "rolling stock" is not defined further. For purposes of EPCRA Section 304, what items are covered by the term "rolling stock"?
A. The term "rolling stock" is a generic term that is used in the railroad industry to denote anything on rail wheels. The term includes locomotives, freight cars, flat cars, and other vehicles that use steel wheels on railroad tracks. For purposes of EPCRA Section 304 reporting, EPA interprets "rolling stock" to be the same items that fall within the scope of the generic term as commonly understood by the railroad industry.
Federally Permitted Releases
Q. Does the "federally permitted release" exemption apply fully to State permitted releases?
A. No. State permitted releases are exempted only to the extent that the releases are considered "federally permitted" under Section 101(10) of CERCLA.
Continuous Releases
Q. Are releases above the amount qualifying as a "continuous releases" exempt from Section 304 notification requirements?
A. Because "statistically significant increases" from a” continuous release" must be reported as an episodic release under CERCLA Section 103(a), such releases must also be reported under Section 304 of EPCRA. Any clarifications or regulations interpreting "continuous releases" or "statistically significant increases" under CERCLA Section 103(f) will also apply to Section 304 of EPCRA.
Mining
Q. Are mining and mineral extraction wastes exempt under Section 304?
A. No. The release notification requirements apply if the wastes are or contain CERCLA hazardous substances or extremely hazardous substances.
Coincidental Production and Release of Hazardous Chemicals
Q. Pursuant to Section 304(a)(2), the owner or operator of a facility must report to the State Emergency Response Commission (SERC) and the Local Emergency Planning Committee (LEPC) any releases of extremely hazardous substances (EHSs) or CERCLA hazardous substances which equal or exceed established reportable quantities (RQs). This requirement only applies, however, to owners and operators of facilities at which hazardous chemicals are produced, used, or stored. For purposes of EPCRA emergency release notification, is a hazardous chemical considered "produced" if it is generated solely as a by-product which is immediately released to the air? Does the facility become subject to release reporting requirements even if this by-product is the only hazardous chemical present on-site?
A. Generation of a hazardous chemical as a by-product is considered "production" under Section 304(a)(2), and any facility generating a hazardous chemical in this manner must evaluate EHS and CERCLA hazardous substance releases for EPCRA notification purposes. EPA considers the term "produce" to be synonymous with "manufacture" under Section 313, and according to the definition in 40 CFR 372.3, manufacturing includes coincidental generation of a chemical by-product during the production, processing, use, or disposal of another chemical substance or mixture. Releasing the chemical by-product to the air immediately following production in no way alleviates the facility's reporting burden. Further, when a facility produces substances which themselves are not hazardous chemicals, but which after release rapidly form hazardous chemicals in the environment, the hazardous chemicals are also considered "produced" for purposes of EPCRA emergency release notification (September 29, 1986, 51 FR 34534). Therefore, facilities at which hazardous chemicals are produced as a by-product of facility operations, including those rapidly formed in the environment subsequent to their release, are required to notify the SERC and LEPC of any EHS or CERCLA hazardous substance release which equals or exceeds an RQ within a 24-hour period.
Abandoned or Discarded Barrels
Q. Must any amount of a listed chemical contained within abandoned or discarded barrels, containers, or other receptacles be considered to determine if a specific reportable quantity has been exceeded under EPCRA Section 304 notification requirements?
A. 40 CFR 355.20 (April 22, 1987, 52 FR 13395) defines a release as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other receptacles) 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 40 CFR 355.40 (52 FR 13396).
Stockpiling/Total Contained
Q. A facility owner/operator collects a CERCLA hazardous substance at his facility in an open dumpster. Every day the owner/operator collects more than the reportable quantity (RQ) of this CERCLA hazardous substance. The unenclosed dumpster is entirely enclosed in the facility. Does the owner/operator need to report this as a release of a CERCLA hazardous substance under CERCLA Section 103(a) or EPCRA Section 304?
A. The May 24, 1989 Federal Register (54 FR 22526) considers the stockpiling of an RQ of a CERCLA hazardous substance and any activity that involves the placement of a hazardous substance into any unenclosed containment structure, wherein the substance is exposed to the environment, a release. The placement of CERCLA hazardous substances would be considered a release if it was not wholly contained in the building. If this substance is totally contained in the building and no exposure to the environment occurs, then release reporting under CERCLA Section 103(a) is not required. In 40 CFR 355.40(a)(2), emergency release notification under EPCRA Section 304 does not apply to any release which results in exposure to persons solely within the facility boundaries. If, during the collection of the CERCLA hazardous substance in the open dumpster there is no potential for exposure to persons outside the facility boundaries, emergency release notification is not needed for Section 304.
Release Reporting Requirements: Liability and Civil Penalty
Q. A waste treatment facility has a release of chlorine above the reportable quantity. The facility owner or operator did not make initial notification of the release as required under EPCRA Section 304. In addition, the facility owner or operator also refused to submit a written follow-up regarding the release of chlorine. Under EPCRA Section 326(a)(1)(A)(i), any person may commence a civil action in the U.S. District Court against owners/operators of facilities for failure to submit the EPCRA Section 304 follow-up report under Section 304(c). If a citizen wants to bring the case to court, will she/he be responsible for the attorney and court fees? Will she/he receive any of the money from fines collected?
A. EPCRA Section 326 (f) states that: "(t)he court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or the substantially prevailing party whenever the court determines such an award is appropriate." In addition, EPCRA Section 326(c) states that: "(t)he district court shall have jurisdiction in actions brought under subsection (a) against an owner or operator of a facility to enforce the requirement concerned and to impose any civil penalty provided for violation of that requirement." Therefore, the court has the authority to impose penalties for violations of a requirement and to award costs of litigation, as appropriate, to the citizen who brought the suit. However, any civil penalties assessed by the court for an action brought under EPCRA Section 326 must go to the U.S. Treasury. Actions brought under State statutes may have different arrangements for penalty distribution. Thus, a citizen suit under EPCRA Section 326 does not allow for penalties to go to the complainant.
Emergency Release Notification and Trade Secret Substantiation Form
Q. Questions No. 3 of the trade secret substantiation form requires the submitter to list all local, State and Federal government entities to which the submitter has disclosed the specific chemical identity. Does the submitter need to report Section 304 emergency release notification if the submitter had a covered reportable release?
A. No. The submitter is only required by the Emergency Planning and Community Right-to-Know Act of 1986 (or EPCRA) to report if the chemical identify is "required to be disclosed, or otherwise made available, to the public under any other Federal or State law" as per Section 322(b)(2) of EPCRA. Hence, emergency release notifications under Section 304 of EPCRA, in which the chemical identified would have to be revealed, would not need to be disclosed on the substantiation form.