EPCRA & e-Disclosure: Tier II & TRI violations

The EPA can impose six-figure penalties against companies that are found in violation of the Emergency Planning and Community Right-to-Know Act’s (EPCRA) hazardous chemical inventory (also known as Tier II) and Toxics Release Inventory (TRI) reporting requirements. Are you confident in your compliance with EPCRA reporting requirements? Now is a good time to audit your reporting procedures to avoid EPA penalties.

EPCRA’s Tier II and TRI reports can be time-consuming to prepare. Gather all necessary data to ensure accuracy. Effective organization and recordkeeping are essential for timely filing.

What could go wrong?

Consider the following questions:

• Did you account for all the chemicals and quantities present at the facility throughout the year? Are you sure you completed a Form R for each of the chemicals at your facility subject to TRI reporting? Did you include the chemical that was only on-site for 2 days in your Tier II report?
• Did you submit copies of your Tier II report in the requested format to the State Emergency Response Commission (SERC), the Local Emergency Planning Committee (LEPC), and local fire department? Facilities are using several different submission formations such as various online tools, email, and mailing hard copies. Often submission to SERC, the LEPC, and the fire department may require utilizing two or more submission formats.
• Did you account for recent changes in the reporting requirements? For example, various per- and polyfluoroalkyl substances (PFAS) were required to be included in the most recent TRI report for the first time. Also, did you consider that certain chemicals had different TRI reporting thresholds due to being recently classified as carcinogens by OSHA?

Be proactive about EPCRA reporting

Staying on top of everything on your plate can be a challenge, and sometimes things inevitably fall through the cracks.

Fortunately, the EPA recognizes that no one is perfect when it comes to EPCRA reporting and have established an e-disclosure system for self-reporting and correcting minor EPCRA violations to avoid fines. You can access the e-disclosure portal through the EPA’s Central Data Exchange (CDX).

The e-disclosure system establishes two categories of violation:

• Category 1: includes EPCRA violations that meet all the conditions of the EPA’s Audit Policy or the EPA’s Small Business Compliance Policy, except for violations of EPCRA Section 304 governing emergency release notifications, EPCRA violations with a significant economic benefit, and violations of Section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Facilities disclosing a Category 1 violation will receive an automatic electronic notice of determination confirming the violations are resolved with no penalty.
• Category 2: includes EPCRA and CERCLA violations not included in Category 1, all non-EPCRA violations, and all violations where the discloser can certify compliance with all the conditions of the EPA’s Audit Policy, except systematic discovery.

Disclosures of Category 2 violations will be met with an automatic electronic acknowledgment letter confirming the EPA’s receipt of the disclosure. However, eligibility for penalty mitigation will be determined by the EPA after it reviews the disclosure. In both instances, after the violation is corrected, the discloser must certify that the violations have been corrected via the e-disclosure portal.

Bottom line

If your facility conducts regular voluntary compliance audits, any Tier II or TRI reporting violations are likely to be classified as Category 1, resulting in no penalty. Even if you cannot satisfy the systematic discovery requirement of the EPA’s Audit Policy, it’s always better to report and correct violations proactively rather than waiting for the EPA to discover them. The latter is more likely to result in a fine.

Taking the initiative to address potential violations demonstrates a commitment to environmental responsibility and fosters a positive relationship with regulatory agencies. Facilities who show their proactiveness can often mitigate the severity of penalties and show their dedication to compliance.

Moreover, conducting regular audits can help identify areas for improvement, allowing facilities to enhance their operations and reduce the risk of future violations. This practice not only safeguards against fines but can also lead to increased efficiency and cost savings in the long run.

Keeping thorough records of all compliance efforts and any corrective actions taken is important. This documentation can be invaluable if questions arise during an EPA review. Additionally, engaging with employees and providing training on compliance can create a culture of accountability and awareness within the organization.

In summary, while the potential for penalties exists, taking proactive steps to ensure compliance can significantly reduce risks. Facilities that prioritize regular voluntary compliance audits, timely reporting, and employee training are better positioned to navigate the complexities of environmental regulations and maintain a good standing with the EPA.