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Thursday, December 11, 2008 Issue 23   VOLUME 1 ISSUE 23  
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Seven Steps to Developing a Climate Action Plan
Tier II Filing: Are You Compliant?
Laboratory Decommissioning: Lessons Learned in the Field
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Tier II Filing: Are You Compliant?
by Karrie-Ann Myer

What is a Tier II?
By March 1st of each year, facilities covered by the Emergency Planning and Community Right-to-Know Act (EPCRA) Sections 311 and 312 are required to submit an emergency and hazardous chemical inventory to the state emergency response commission (SERC), the local emergency planning committee (LEPC), and the local fire department. Nationally, about 550,000 facilities are required to do so.

Tier II reports required under EPCRA provide state and local officials and the public with specific information on certain products that were present at facilities during the previous calendar year.

The Community Right-to-Know provisions help increase the publicís knowledge and access to information on chemicals at individual facilities, their uses, and releases into the environment. States and communities, working with facilities, can use the information to improve chemical safety and protect public health and the environment.

On a large community-wide scale, the efforts of the Tier II reporting process assisted emergency response personnel during the Hurricane Katrina aftermath. Emergency response agencies utilize the Tier II data to determine what chemicals and compounds they may be exposed to while responding to daily emergencies, such as a fire. Information derived from Tier II data provided by emergency responders can assist healthcare providers with patient assessment and treatment.

For most states the reporting thresholds, or Threshold Planning Quantities (TPQ), are 10,000 pounds of any substance or product for which a material safety data sheet (MSDS) is required. For Extremely Hazardous Substances (EHS), the Total Planning Quantity may be 500 pounds or the TPQ, whichever is less.

Who Must File?
EPCRA, as part of the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard, indicates that if an entity is subject to OSHA then they are also subject to EPCRA. Not all states are governed by the federal OSHA rules and regulations. Therefore, for states that are not subject to OSHA, state owned and operated facilities are not required to report Tier IIs as defined by EPCRA. However, if you are a privately held company or institution then you must file Tier IIs if your organization meets the Threshold Planning Quantities.

To determine whether or not your state has an equivalent Occupational Safety and Health program, look to the OSHA website. However, the list does not seem to include all states that are conditionally exempt from Tier II reporting, therefore, we highly recommend you check with your U.S. Environmental Protection Agency (EPA) regional office before you decide not to file.

The following are materials that are commonly found to be above the Threshold Planning Quantities:
 
Fuels: Fuel oils, diesel, Kerosene, propane. Other petroleum products: motor oil, hydraulic fluid (elevators, compressors, forklifts, other machinery)

Compressed Gasses: Nitrous oxide, oxygen (liquid, refrigerated), air,; carbon dioxide, nitrogen, helium

Salts: Sodium chloride, calcium chloride, sand

Refrigerants: Anhydrous ammonia (an EHS), CFC-12, CFC-22, HCFC-123

Extremely Hazardous Substances: (remember these typically have a lower Threshold Planning Quantity than 500 pounds) Nitric acid; formaldehyde (in formalin or solution), ethylene oxide (found in sterilizers), sulfuric acid (lead acid batteries); sodium arsenate; aqueous ammonia solutions

When reviewing your chemical inventory, do not forget to include your building system components. Depending upon the size of your facility, you may have large enough quantities of ethylene glycol (heating; A/C systems), brine solution, water tower cooling liquid, lead, silica (sand), and Halon 1301 (fire extinguishers).

You must also consider large scale construction projects and what chemicals were stored on site in the last calendar year. If you have steel beams, weighing in excess of 10,000-pounds at your facility, that were braised, cut, or welded, while at your facility you need to add them to your Tier II report.

When it comes time to determine whether or not you need to report, your team members will include facility managers, housekeeping or procurement staff, lab managers, department contacts (consider art, graphic design, chemistry, sciences). These are typically the people we involve when filing a Tier II report.

Failing to File
The EPA feels they have been doing their outreach and education programs for a number of years, so now they are gearing up to enforce these Tier II rules. Failure to comply with these rules will allow the EPA to administer civil and administrative penalties ranging from $10,000 to $75,000 per violation or per day per violation. In addition, non-compliance opens the door for citizens to initiate civil actions against the owner or operator of a facility for failure to meet the EPCRA requirements. The SERC, LEPC, and state or local government may institute actions against a facility owner/operator for failure to comply with EPCRA requirements.

If you have not filed and the EPA finds out, you can likely expect a visit from them. Although they may choose not to fine your facility for the EPCRA violation, having them come to your facility makes your organization susceptible to other findings or rulings.

Hints and Recommendations
We recommend that you be conservative with your reporting. If you find you have chemicals that are right on the reporting threshold, consider the consequences of not filing versus filing.

The calculations and data organization are a complex process. Be sure to leave time to review your state's regulations and perform the conversions.

When possible, it is helpful to enlist a team of colleagues at your facility and to divide the task of data gathering among the group. But be sure each member fully documents your filing determination and calculations. Keeping organized and transparent records will assist with filings in the following years. Leave yourself time. December is not too early to start gathering this information. Know ahead of time whether or not you have to file.

Lastly, if this is your first time filing, consider hiring an outside consultant to help you understand the rules and assist with that first filing. If you do hire a consultant, insist on transparent records so you can complete filings in the future. Once the calculations and quantities are determined the first time, filing subsequent years can become quite easy.

March 1st comes up quickly every year. Be sure to prepare ahead of time for the amount of time and effort this filing will take. Also try to remember why you are filing. You are doing this to protect emergency response personnel (which could include your own staff) when responding to emergencies, as well as to protect communities by determining when and if large scale evacuations may be necessary.

Karrie-Ann Myer is an Environmental Scientist with EH&E and has extensive experience in the areas of environmental health and safety management and hazardous materials permitting and management.  Ms. Myer has 10 years experience interpreting EPA regulations.  If you have any questions, contact Karrie-Ann at KMyer@eheinc.com.

EH&E's Tier II Express service expertly guides you through the site evaluation and reporting process so that you can avoid costly mistakes. The service also leaves you with the tools and training you need to then perform all subsequent annual reports. For more information go to http://www.eheinc.com/tier_II_express.htm.

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