CHAPTER 9 COMMUNITY RIGHT TO KNOW AND REPORTING
| Jurisdiction | United States |
(May 1990)
COMMUNITY RIGHT TO KNOW AND REPORTING
Kimball, Parr, Crockett & Waddoups
Salt Lake City, Utah
TABLE OF CONTENTS
Page No.
I. INTRODUCTION
A. Background
B. Summary
II. BASIC PROVISIONS
A. Emergency Planning: EPCRA §§ 301-303
B. Emergency Release Notification: EPCRA § 304
1. Notification Requirements
2. Exemptions
3. Contents of Initial Notification
4. Follow-up Notification
5. Chart: Reporting Requirements Under CERCLA and EPCRA
C. Community Right-To-Know Reporting: EPCRA §§ 311-312
1. Introduction
2. Material Safety Data Sheets and Inventory Reporting: §§ 311 and 312
(a) Applicability
(b) Basic Requirements of § 311
(c) Basic Requirements of § 312
(d) Mixtures
(e) Requests for Further Information
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3. Toxic Chemical Release Report: EPCRA § 313 9-10(a) Basic Requirements 9-10(b) Applicability 9-10(c) Information to be Reported 9-11(d) Uses of Data 9-11(e) Enforcement (Current Developments)
III. APPLICABILITY TO THE NATURAL RESOURCES INDUSTRY
A. Subsurface Operations
B. EPA's Interpretation of "Release"
C. Toxic Release Inventory: Section 313 1. Public Relations Effect of TRI Database
IV. MISCELLANEOUS PROVISIONS
A. Public Information
B. Trade Secrets
C. Enforcement
D. Citizen Suits
E. No Preemption
F. Transportation Exemption
G. Federal Government Exemption
V. HELPFUL TIDBITS
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I. INTRODUCTION
A. Background
The Emergency Planning and Community Right-to-Know Act of 1986 ("EPCRA")1 is Congress' reaction to the Bhopal tragedy in which over 2,000 people were killed by a release of methyl isocyanate from a pesticide plant. For years before Bhopal, Congress and EPA had struggled over proposals to expand § 112 of the Clean Air Act ("CAA") with regard to air toxics. Bhopal became the catalyst for a flurry of events.
One month after Bhopal, Representative Waxman (D.-CA.), Chairman of the House Subcommittee on Health and Environment, instituted a "poison gas" survey of major chemical companies. Four months later, Waxman and others introduced the "Toxic Release Control Act," a beefed-up, "Bhopal" version of earlier CAA § 112 bills. The Act would have required strict emission standards and used an expanded list of 85 toxic chemicals. The Act included EPCRA-type provisions. At about the same time, EPA developed its own air toxics strategy focusing on 15 pollutants and pollutant groups. Six months after Bhopal, political compromise led to Senate and House bills that would become EPCRA. These bills were introduced as part of the Superfund Amendments and Reauthorization Act (SARA). Sixteen months later, on October 17, 1986, SARA (including EPCRA as Title III) was enacted.
EPCRA addresses response rather than prevention. However, EPCRA is viewed by many as an intermediate step to acquire data to build public concern and political consensus for future air toxics legislation.
B. Summary
1. EPCRA was enacted October 17, 1986 as Title III of the Superfund Amendments and Reauthorization Act (SARA); however, EPCRA is a free-standing law.
2. EPCRA has two main goals: (1) to encourage and support state and local emergency planning regarding chemical releases, and (2) to provide residents and local governments with information on potential chemical hazards in their communities.
3. EPCRA is to achieve these goals by two main mechanisms: (1) It requires the establishment of state and local emergency planning bodies and the development of local emergency plans, and (2) it requires a large number of facilities to report detailed information on the presence and health effects of specified chemicals and on releases thereof. The remainder of
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this paper is a review of the major provisions of EPCRA and EPA's regulatory implementation thereof.
II. BASIC PROVISIONS
A. Emergency Planning: EPCRA §§ 301-303 (42 U.S.C. §§ 11001 -11003)
1. By April 17, 1987, a State Emergency Response Commission must have been appointed by the Governor of each state. The Commission appoints and coordinates activities of local Emergency Planning Committees and processes requests from the public for EPCRA information.2
2. By May 17, 1987, covered "facilities" must have notified the State Commission that they are subject to EPCRA's emergency planning provisions.3 A covered "facility" is:
(a) all buildings, equipment, structures, and other stationary items on a site (or contiguous sites) owned or operated by the same person,4
(b) at which there is present an "extremely hazardous substance" (EHS) in excess of the "threshold planning quantity" (TPQ).5 EPA's list of EHSs is codified at 40 C.F.R. 355 , Appendix A.6 For purposes of determining TPQs, mixtures containing less that 1% EHS's should not be counted.7
3. By August 17, 1987, Local Emergency Planning Committees must have been appointed.8 The Committee makeup is set
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forth in the statute and includes representatives of various groups needed for emergency planning, including representatives of covered facilities. The main responsibility of the Committee is to have prepared, by October 17, 1988, a local emergency response plan under § 303.
4. By September 17, 1987, owners or operators of covered facilities must have notified the local committee of their designated facility representative who will participate in the emergency planning process.9 Owners or operators of covered facilities are required to notify the Committee of relevant changes at the facility and, upon request, they must provide necessary information for developing the local emergency plan.
B. Emergency Release Notification: EPCRA § 304 (42 U.S.C. § 11004)
1. Notification Requirements.
Facilities must immediately notify the local committee and the state commission of any releases of a "reportable quantity" (RQ) of an EPCRA EHS or a CERCLA "hazardous substance" (HS). The initial report is by telephone,10 but a follow-up written report with additional information is also required.11
(a) The current list of EHSs is codified at 40 C.F.R. 355 , Appendix A. A complete list of CERCLA HS's can be found at 54 Fed. Reg. 33,418 (August 14, 1989) and is codified at 40 C.F.R. 302.4.12 Both lists specify the applicable RQs. As will be discussed further below, on August 30, 1989, EPA proposed to adjust reportable quantities for EHSs13 in connection with its proposal to designate all EHSs as CERCLA Hazardous Substances.14 EPA expects to finalize both proposals in the fall of 1990.
(b) EPA has proposed to designate all EHS's as CERCLA HS's.15 The purpose of the proposed rule is to eliminate confusion caused by different notification requirements for releases of EHSs (notification to state and local officials only) and CERCLA HSs (notification to the National Response Center in addition to notification to state and local officials). When this
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proposed rule is finalized in the fall of 1990, it will require SARA Title III release reporting to the National Response Center ((800) 424-8802) in addition to the current reporting requirement to state and local officials.
(c) For determining RQs of mixtures under § 304, EPA is using the CWA/CERCLA "mixture rule," i.e., "whether or not the RQ is exceeded depends on the amount of the [hazardous or extremely hazardous] substance in the mixture, if known."16 EPA has also adopted from CERCLA the interpretation that RQ determinations do not require aggregation of releases from separate facilities or releases of different hazardous substances at the same facility.17 The Agency is also using the CERCLA 24-hour rule for determining RQs under EPCRA.18
(d) EPA published a proposed rule adjusting the RQs of EHSs proposed to be designated as CERCLA hazardous substances19 in an effort to reduce the reporting and response burdens on the regulated community and on federal, state, and local governments, respectively. This rule will probably be finalized in the fall of 1990, when the proposed rule designating EHSs as CERCLA HSs is finalized.
(e) "Facilities" subject to § 304 release reporting is a broader category than "facilities" subject to the emergency planning provisions of §§ 301-303. Facilities must notify of releases under § 304 even if a "threshold planning quantity" of a substance is not present. Furthermore, § 304 is the only section of EPCRA that applies to transportation facilities."20 The definition of "facilities" under § 304 is limited to facilities that produce, use or store "hazardous chemicals"; this does not appear to exempt many facilities except for certain laboratory and medical facilities.21
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2. Exemptions.
The following releases are exempt from reporting under § 304:
(a) Any release which results in exposure to persons solely within the boundaries of the facility.22 There is no such exemption under CERCLA.
(b) "Federally permitted releases" under CERCLA § 101(10).23
(c) "Continuous" releases under CERCLA § 103(f) except for "statistically significant increases."24
(d) The application of a registered pesticide in accordance with its purpose under CERCLA § 103(e).25
(e) Any releases not meeting the definition of release under CERCLA § 101(22) and therefore exempt from CERCLA Section 103(a) reporting,26 e.g., emissions from engine exhaust, certain nuclear material releases, the normal application of fertilizer.27
(f) Radionuclide releases occurring (a) naturally in soil from land holdings (i.e., parks, golf courses, or other large tracts of land); (b) naturally from the disturbance of land for purposes other than mining, such as for agricultural or construction activities; (c) from the dumping of coal and coal ash at utility and industrial facilities with coal-fired boilers; and (d) from coal and coal ash piles at utility and industrial facilities with coal-fired boilers.28
EPA startled the regulated...
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