Toxic Release Inventory Reporting Due Soon: Is Your Facility Exempt?

[tweetmeme]If you don’t know whether your facility is required to submit Toxic Chemical Release forms you should find out FAST!  Affected facilities must complete a separate Form R or Form A for each listed chemical or chemical category that is manufactured, processed, or otherwise used in excess of the threshold amount annually.  Fortunately for everyone EPA has developed TRI-MEweb software for Form R submissions which greatly reduces the time necessary for compliance.

Section 313 of the Emergency Planning and Community Right to Know Act (EPCRA) of 1986 was enacted to facilitate emergency planning, to minimize the effects of potential toxic chemical accidents, and to provide the public with information on releases of toxic chemicals in their communities.  As a result the TRI database was created which contains detailed information on nearly 650 chemicals and chemical categories that over 23,000 industrial and other facilities manage through disposal or other releases, recycling, energy recovery, or treatment.  The data are collected from industries including manufacturing, metal and coal mining, electric utilities, commercial hazardous waste treatment, and other industrial sectors.

TRI-MEweb is a Web-based application that can be accessed anywhere with a connection to the Internet.


  • TRI-MEweb allows facilities to file a paperless report, significantly reduce data errors, and receive instant receipt confirmation of their submissions.
  • Certifying officials must register for the application that requires the printing, completion, and mailing of an electronic signature agreement.
  • TRI-MEweb submissions are NOT available for trade secret claims.  Facilities must continue to submit hard copies of the TRI reporting forms and trade secret substantiation form.

Don’t click through to the EPA TRI-MEweb site just yet.  Although EPA has identified more than 650 chemicals and chemical categories that are subject to the TRI annual reporting requirement there are exemptions you should be aware of that just may eliminate the need for a last minute scramble to complete you TRI reporting prior to July 1st.

Exemptions to TRI reporting:

Certain uses of listed toxic chemicals are exempt:

  • Use as a structural component of the facility.
  • Use in routine janitorial or facility grounds maintenance (including phenol in bathroom disinfectants and pesticides in lawn care products). Listed chemicals used in facility equipment maintenance and cleaning or maintenance activities that are integral to the production process at the facility are not exempt (e.g., herbicides used on an aboveground storage tank berm).
  • Employees’ personal use (foods, drugs, cosmetics, etc.).
  • Use of products containing toxic chemicals for facility motor vehicle maintenance.
  • Use of toxic chemicals contained in intake water (used for processing or noncontact cooling) or in intake air (used either as compressed air or for combustion).

The de minimis exemption applies where the quantity of a listed chemical in a mixture or other trade-name product is either:

  • An OSHA-defined carcinogen present at a concentration of less than 0.1 percent by weight
  • Any other listed chemical present at a concentration of less than 1 percent by weight

There are other exemptions as well such as those that are manufactured, processed, or used in a laboratory.  However all of these exemptions have limitations and I strongly encourage you to click through to the EPA TRI FAQ website to learn more.

More:  EPA Toxics Release Inventory (TRI) Program

EPRCA Tier II Reports born from Tragedy

[tweetmeme]In the early morning of December 3, 1984, a Union Carbide plant near Bhopal, India released approximately forty tons of Methyl Isocyanate (MIC) into the air. The gas quickly spread over the ground and, in the end, killed upwards to 5,000 people and injured 50,000 more. The other place that Union Carbide manufactured MIC was at its Institute plant in West Virginia. Following the Bhopal release Union Carbide elected to shut down production of the deadly chemical at its West Virginia location until it could make $500 million worth of safety improvements.

New Safety Programs

Approximately four months after completion of the safety improvement program, 500 gallons of highly toxic aldchiloxin (and MIC) leaked from the plant. Although no one was killed, 134 people living around the plant were treated at local hospitals.

Both the Bhopal and West Virginia incidents highlighted the serious nature of modern-day chemical production — no matter what safety precautions are taken, no matter how well trained a plant’s employees may be, and no matter how prepared a plant may be to handle an emergency situation, accidents can still occur and people may die.

Congress Acts

With thousands of chemical accidents occurring in the United States within a five year period in the mid-1980s, Congress passed the Emergency Planning and Community Right-to-Know Act (EPCRA) in 1986, ushering in a new wave of regulations and reporting requirements designed to alert the surrounding communities of the dangers posed at chemical facilities in the U.S.

To implement EPCRA, Congress required each state to appoint a State Emergency Response Commission (SERC). The SERCs are required to divide their states into Emergency Planning Districts and to name a Local Emergency Planning Committee (LEPC) for each district.

The facilities covered by EPCRA requirements are now required to submit an Emergency and Hazardous Chemical Inventory Form to their LEPC, as well as their SERC, and their local fire department annually by March 1st.

The reports known as “Tier II Reports,” require basic facility identification information, employee contact information for both emergencies and non-emergencies, and information about chemicals stored or used at the facility.
Under the EPCRA, SERCs and LEPCs are charged with four primary responsibilities:

  1. Write emergency plans to protect the public from chemical accidents;
  2. Establish procedures to warn and, if necessary, evacuate the public in case of an emergency;
  3. Provide citizens and local governments with information about hazardous chemicals and accidental releases of chemicals in their communities; and
  4. Assist in the preparation of public reports on annual release of toxic chemicals into the air, water, and soil.

Tier II Reporting Information

What facilities are covered?

  • Any facility required under Occupational Safety and Health Administration (OSHA) regulations to maintain material safety data sheets (MSDSs) for hazardous chemicals stored or used in the work place. Facilities with chemicals in quantities that equal or exceed the following thresholds must report:
  • For Extremely Hazardous Substances (EHSs) , either 500 pounds or the Threshold Planning Quantity (TPQ), whichever is lower
  • For gasoline (all grades combined) at a retail gas station, the threshold level is 75,000 gallons (or approximately 283,900 liters), if the tank(s) was stored entirely underground and was in compliance at all times during the preceding calendar year with all applicable Underground Storage Tank (UST) requirements at 40 CFR part 280 or requirements of the State UST program approved by the Agency under 40 CFR part 281.
  • For diesel fuel (all grades combined) at a retail gas station, the threshold level is 100,000 gallons (or approximately 378,500 liters), if the tank(s) was stored entirely underground and the tank(s) was in compliance at all times during the preceding calendar year with all applicable Underground Storage Tank (UST) requirements at 40 CFR part 280 or requirements of the State UST program approved by the Agency under 40 CFR part 281.
  • For all other hazardous chemicals, 10,000 pounds.

Tier2 Submit Software

  • EPA has recently developed ‘Tier2 Submit,’ an online software program designed to help facilities prepare an electronic chemical inventory report. Although many states accept Tier2 Submit, some states such as Missouri do not.


  • The owner or operator or the officially designated representative of the owner or operator must certify that all information included in the Tier Two submission is true, accurate, and complete.


  • Any owner or operator who violates any Tier II reporting requirements shall be liable to the United States for civil penalty of up to $27,500 per day for each such violation.
  • Although each day a violation continues shall constitute a separate violation it has been EPA’s policy not to enforce the daily penalty on those companies making a good faith effort to come into compliance with the reporting requirements.

For more information on EPA Tier II reporting requirements visit their website.  Specific state requirements links can also be found there.

Is Your Facility Ready for a Compliance Inspection in 2012?

[tweetmeme]It’s already 2012 and now is a great time to review your facility’s environmental, health & safety compliance standing.   You should be aware of your ability to withstand an inspection from OSHA or EPA this year.   Typically, an inspector will assess the effectiveness of your facility’s environmental and safety programs by asking EHS, operations, and maintenance staff to answer a series of general questions.   Once they start getting inconsistent, or a lot of  “I don’t know”  answers they know they have a ‘live on on the hook’!   It’s only a matter of time before they reel you in.   You need to stay ahead of the game.

Here’s how you can make the inspection of your facility go as smoothly as possible:

Tips for a Smooth Inspection

  • Cooperate – The most important advice to follow during an inspection is to cooperate with the inspector.   The inspector may equate noncooperation with regulatory noncompliance.

  • Accompany the inspector – The facility owner, operator, or workplace supervisor should accompany the inspector during the inspection to take notes on the inspector’s comments. When accompanying the inspector, pay particular attention to questions that the inspector asks you or employees about workplace health and safety or waste management practices.
  • Correct errors – It is also important, if possible or if requested by the inspector, to correct regulatory problems, such as a malfunctioning chemical-treatment-process machine or a minor spill, during the inspection.
  • Duplicate samples and records – Should the inspector take samples; you should take a samples the same time so that you have nearly identical samples.  Ask the inspector what test or analysis the sample will undergo and have the same test or analysis conducted independently on your sample for your own records.

Should the inspector request copies of corporate records, either make the copies then, or if the request requires a substantial amount of copying, agree to a schedule to provide them to the inspector.   Keep a copy of everything you provide to the inspector.   The inspector may also take pictures of relevant plant equipment or processes.   You should take the same pictures from the same angle.

Are you ready to answer these questions?

  • How are EHS regulatory requirements determined and communicated?
  • How is compliance monitored?
  • What is the effectiveness of the internal communication systems, particularly under spill or release scenarios? Accidents and Injuries?
  • What is the existence and completeness of detailed process flow charts and mass balances?
  • How is noncompliance communicated to management?  What is the follow up?
  • Is environmental and safety compliance a factor in job performance evaluations for front line Supervisors?  Employees?  How about Management?
  • What is the existence and scope of an environmental and safety training programs?
  • What are the existence, scope, and maturity of the facility’s EHS management systems?

Don’t be afraid to ask for help.  You don’t have to go through this alone!  There are a lot of valuable resources available to you on the web.   OSHA and EPA both have good resources on their websites; contact other professionals through social media such as LinkedIn Groups.  You can also contract with a professional consultant, or contact your state’s Department of Labor; many have assistance programs that can get you on the right track.   Most important though, talk to your senior management and get them to understand the importance of EHS, both from a regulatory compliance standpoint and more importantly from a good business perspective.  Be prepared to make 2012 a great year!

EPA Gets Conviction on Asbestos Training Scam

[tweetmeme]“Today, justice was served, and Albania Deleon has finally faced the consequences of her crimes…”

EPA has announced that the former owner of the country’s largest asbestos abatement training school was sentenced to prison, after having fled the United States after her trial in November 2008. U.S. District Judge Nathaniel M. Gorton sentenced Albania Deleon, 41, formerly of Andover, Mass., to 87 months in prison to be followed by 3 years of supervised release. She was also ordered to pay more than $1.2 million in restitution to the Internal Revenue Service and $369,015 to AIM Mutual Insurance Company.

According to the EPA, Deleon who owned and operated Environmental Compliance Training (ECT), a certified asbestos training school located in Methuen, MA, offered training courses on a weekly basis at her Methuen offices, however, many of the recipients of the certificates never took the required course.

Instead, with Deleon’s knowledge and approval, ECT’s office employees issued certificates of course completion to thousands of individuals who did not take the course. These individuals filed the certificates with the Massachusetts Division of Occupational Safety in order to be authorized to work in the asbestos removal industry.

According to Court documents many of the recipients were illegal aliens who wished to skip the 4-daylong course so that they would not forego a week’s pay.  Of course as already noted by others the losers in this scam were the workers who were not knowledgeable of the hazards of asbestos exposure and didn’t know how to protect themselves from unnecessary exposure in the work place.  In return for not losing one weeks pay they may face an even more uncertain future…one filled with asbestos related illnesses.  Their quality of life may be significantly altered and so to their family’s!

Some have contended that many of the untrained workers were hired by another firm Deleon owned and assigned to perform asbestos abatement and demolition, which makes this scam even worse for the customers and clients of this scam.  Their project may not have been handled within the rules and laws set out to protect them and the public from the dangers of asbestos removal projects.

From 2001 to 2006 ECT issued training certificates to over 2,000 untrained individuals.  According to the EPA Press Release, “Today’s sentence marks the final chapter in bringing Albania Deleon to justice,” said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. “Committing environmental crimes to make a profit that put workers and our communities at risk carry serious consequences.”

Deleon is the fifth environmental criminal captured since the EPA fugitive website was launched in December 2008.

EPA pulls Proposed Ozone Standard due to Economic Considerations

[tweetmeme]Citing the importance of “reducing regulatory burdens and regulatory uncertainty,” President Obama took EPA’s proposed ozone standard off the table for the time being.

In a statement touting the actions the current EPA has taken under the leadership of Lisa Jackson, the president said that he cannot support the burden the proposed standard would impose as the economy recovers and requested that Jackson withdraw the draft ozone standard that would have tightened the ozone standard from the current 75 parts per billion (ppb) to 60 ppb.  The EPA will revisit the ozone standard in 2013

Ozone (O3) is a gas composed of three oxygen atoms. It is not usually emitted directly into the air, but at ground-level is created by a chemical reaction between oxides of nitrogen (NOx) and volatile organic compounds (VOC) in the presence of sunlight. Ozone has the same chemical structure whether it occurs miles above the earth or at ground-level and can be “good” or “bad,” depending on its location in the atmosphere.

According to many environmentalists this is a huge win for ‘corporate polluters’ and a huge loss for public health.  However business leaders such as the U.S. Chamber of Commerce and others contend there’s no doubt that the standard would have thrown large swaths of the country into non-attainment, requiring businesses to obtain costly permits or technologies to comply.  The EPA’s proposal would have cost $19 billion to $90 billion, according to the White House.

“Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered,” Obama said in a statement.

For more information:



EPA to Impose Stricter Pollution Regulations for Public Waters

[tweetmeme]The Obama Administration recently announced that it will impose stricter pollution regulation for millions of acres of wetlands, and tens of thousands of miles of streams, to prevent the dumping of mining waste and discharge of industrial pollutants into waters that feed swimming holes and drinking water supplies. Questions regarding which streams and wetlands qualify for protection under the Clean Water Act have been in dispute for years.

EPA Administrator Lisa. P Jackson says that while the new rules will expand the waterways that fall under federal protection, it is not a massive increase. The policy change will likely affect tributaries that flow into bodies like the Chesapeake Bay. Senator Benjamin L. Cardin, D-Md, the chair of the water and wildlife subcommittee of the Senate Environment and Public Works Committee, says the proposed guidance is intended to address the Supreme Court’s concerns in a way that will protect waters that are important to fish and wildlife habitats, flood protection, and drinking water. Once finalized, the new regulations will apply federal water quality standards to a variety of waterways, including the headwaters of lakes, as well as rivers and intermittent streams.

Some groups, including livestock owners and home builders, have argued that the new regulations would impose an economic burden. The Obama Administration will accept comments on its proposed guidance for 60 days before drafting binding rules.

read more: Washington Post

OSHA Spared Congress Cost Cutting Axe…For Now!

[tweetmeme]Last Saturday, Congress agreed to again extend federal spending by passing a short-term continuing resolution – allowing the federal government to continue operating for one additional week while details were worked out on a federal budget for the remaining six months in the FY11 federal budget.  On Tuesday, Congress began providing details on the remainder of the FY11 budget – both spending limits and cuts that would take place.

The bill provides OSHA with last year’s funding level of $558.6 million. The original proposal would have cut $99 million or 18 percent from the agency’s budget. However, while OSHA was spared from major cuts, agency will take a cut of $1.2 million because of the “across the board” 2 percent cut in federal spending. According Aaron Trippler, Government Affairs Director for AIHA, there has also been word from several OSHA insiders that the 2012 budget will encompass huge cuts, perhaps taking the agency back to 2006 spending levels.

Other Agencies according AIHA Happenings on the Hill Report:


The Environmental Protection Agency is facing a huge cut of $1.6 billion, or 16 percent. Added to that is the 2% rescission will be in addition to this.


The bill provides MSHA with $363.8 million, an increase of $6.5 million over last year.  MSHA may also hit with the 2% across the board reduction.


NIOSH will take a $49 million hit for the reminder of this fiscal year.  There was some concern that this $49 million would come from the ERC and the AFF program funds.  However, sources say most of the $49 million in cuts are World Trade Center related and will not impact ERC or AFF funding.  NIOSH is also expected to face the across the board 2% cut in spending.

EPA to Reject Confidentiality Claims for Chemical Identity Starting Aug. 25th

[tweetmeme]Starting August 25th, Environmental Protection Agency (EPA) will likely reject all confidentiality claims for chemical identity in health and safety studies. 

As it stands now, submitters may claim confidentiality for proprietary information within a Toxic Substances Control Act (TSCA) submission — but should submit a detailed written explanation to substantiate all confidential business information (CBI) claims.  Also, submitters must submit a sanitized or “cleaned-up” copy of the submission for placement in the TSCA Public Docket.

Back on January 21, 2010, EPA announced this new policy in order to increase the public’s access to information on chemicals. EPA stated its intention to reject a certain type of confidentiality claim, known as Confidential Business Information (CBI), on the identity of chemicals.

For the first time in a long time, EPA will systematically review all confidentiality claims pertaining to chemical identity in any industry submissions of health and safety studies and associated data.  Such claims are routinely asserted in submissions of health and safety data under TSCA section 4 (for test rules), section 5 (for new chemicals and new uses of existing chemicals), section 8(d) (for call-ins of health and safety studies), and section 8(e) (for mandatory reporting of substantial risk information). 

Arguably the most contentious assertions come in with section 8(e) submissions.  EPA statistics indicate that, over the last 3 years, more than 40% of such 8(e) notices claim the chemical identity to be confidential. 

EPA states that it intends to respond to certain confidentiality claims regarding chemical identities in health and safety studies and in data from health and safety studies with a determination letter; “that such information is clearly not entitled to confidential treatment.” At this time, EPA says it expects to issue determination letters when the chemical identity claimed as confidential:

  1. Was submitted as part of a health and safety study, or of data from a health and safety study, submitted under TSCA that is subject to TSCA Section 14(b)(1).
  2. Does not explicitly contain process information.
  3. Does not reveal data disclosing the portion of the mixture comprised by any of the chemical substances in the mixture.

According to the EPA they are taking these steps to improve the transparency of chemical information.  Earlier EPA determined that some information previously held confidential would no longer be, and they also put the public portion of the TSCA Inventory on the internet for free availability for all (previously you had to purchase access through private vendors).

RCRA-OSHA Training Requirements Overlap

[tweetmeme]There are many different training requirements for facilities owner/operators depending on the industry you serve.  Both EPA and OSHA have detailed training requirements that require substantially the same  curriculums.  For example 40 CFR 262.34(a)(4) states that large quantity generator (LQG) waste management personnel must be trained in accordance with the requirements of 265.16. 40 CFR Parts 264.16 and 265.16, which require facilities to train waste management personnel.  Facility personnel must complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in a way that ensures the facility’s compliance with the requirements of Section 265.

The program must teach facility personnel hazardous waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed.   At a minimum, the program must ensure that employees are able to respond to emergencies and must include training on emergency procedures, equipment and systems.  Personnel must complete the training within six months of employment and take part in annual refresher training. For each employee, the owner or operator must maintain documentation of the job titles, employee names, job description, and the type and amount of training provided.

Similar types of OSHA training requirements also exist; specially those applicable to any facility and those establishing Hazardous Waste Specific Training.  OSHA training requirements that may be applicable to any facility include the Hazard Communication Program (29 CFR 1910.1200), which requires training in the physical and health hazards of chemicals in the work area; protective measures including work practices and personal protective equipment; and an explanation of labeling systems and material safety data sheets (MSDSs).   Also required is Safety and Health Hazards training, which can include training on:

  • Confined Space Entry
  • Lock Out-Tag Out
  • Respirator Use
  • Personal Protective Equipment
  • Powered Vehicles
  • Fall Protection

Facilities that have the potential for an emergency to occur due to an uncontrolled release of hazardous substances or hazardous raw materials are required to provide training required under HAZWOPER 29 CFR 1910.120 paragraph (q).   Employers who have hazardous waste storage areas must provide training required under either 29 CFR 1910.120 (p)(8) or (q) for those areas.   However, both paragraphs do provide exemptions from the basic requirements if the employer intends to evacuate all employees in the event of and emergency and call in a trained emergency response team.  In this case employers must provide an emergency action plan and training in accordance with 29 CFR 1910.38(a).  The training requirements of 29 CFR 1910.38 are minimal, requiring the training of a sufficient number of persons to assist in the safe and orderly evacuation of employees in the event of an emergency.  Other training may be required depending on the duties and function of the employee.

Facilities that are required to provide training under RCRA can include this training with their OSHA HAZWOPER training without an extension in the number of training hours (per an OSHA policy directive).  The big difference is in how records are kept.  For OSHA, records must merely show the employee name and date of training.  For RCRA, the records required under 264.16(d) and 265.16(d) require much the same.   However, permitted and interim status facilities must maintain documents as specified at 264.15(d)(1) through (3).   In my opinion EPA should consider providing more detailed guidance regarding the crossover between OSHA and RCRA training requirements, taking into consideration the existing OSHA guidance and the need to ensure adequate training of personnel.

If you have specific questions about your facilities training needs, call your nearest OSHA or EPA area office, or contact me, I will be happy to discuss your situation and offer any guidance necessary.

EPA intends to establish a “Chemicals of Concern” list

[tweetmeme]The EPA recently announced a series of actions on four chemicals raising serious health or environmental concerns.  According their press release, EPA intends to establish a “Chemicals of Concern” list and EPA is beginning a process that may lead to regulations requiring significant risk reduction measures to protect human health and the environment.  

The agency’s actions are permitted under the authority of the existing Toxic Substances Control Act (TSCA).  They also acknowledge and recognize that the 1976 law is both outdated and in need of reform, but that is another story.

The chemicals EPA is addressing

  • phthalates,
  • short-chain chlorinated paraffins,
  • polybrominated diphenyl ethers (PBDEs), and
  • perfluorinated chemicals, including PFOA.

These chemicals are used in the manufacture of a wide array of products and have raised a range of health and environmental concerns. EPA also recently announced that three U.S. companies agreed to phase out DecaBDE, a widely used fire retardant chemical that may potentially cause cancer and may impact brain function.   On September 29, 2009, EPA Administrator Lisa Jackson outlined a set of agency principles to help inform legislative reform and announced that EPA would act on a number of widely studied chemicals that may pose threats to human health.  

When TSCA was passed in 1976, there were 60,000 chemicals on the inventory of existing chemicals.  Since that time, EPA has only successfully restricted or banned five existing chemicals and has only required testing on another two hundred existing chemicals.  An additional 20,000 chemicals have entered the marketplace for a total of more than 80,000 chemicals on the TSCA inventory.  The actions announced by the EPA include:

  • Adding phthalates and PBDE chemicals to the concern list.
  • Beginning a process that could lead to risk reductions actions under section 6 of TSCA for several phthalates, short-chain chlorinated paraffins, and perfluorinated chemicals.
  • Reinforcing the DecaBDE phaseout – which will take place over three years – with requirements to ensure that any new uses of PBDEs are reviewed by EPA prior to returning to the market.

This is the first time EPA has used TSCA’s authority to list chemicals that “may present an unreasonable risk of injury to health and the environment.”  The decision to list the chemicals further signals this administration’s commitment to aggressively use the tools at its disposal under TSCA.  Inclusion on the list publicly signals EPA’s strong concern about the risks that those chemicals pose and the agency’s intention to manage those risks.  Once listed, chemical companies can provide information to the agency if they want to demonstrate that their chemical does not pose an unreasonable risk.

For more information on EPA’s legislative reform principles and a fact sheet on the complete set of actions on the four chemicals, visit: