June 26, 2012  Businesses, including manufacturers, mines and electrical power generation facilities, that employ 10 or more persons, is specified in certain Standard Industrial Classification (SIC) codes, and manufacture or process more than 25,000 pounds of certain listed chemicals or otherwise use more than 10,000 pounds of such chemicals in a given year face an annual July 1st reporting deadline. The reports are required under the federal Emergency Planning and Community Right-to-Know Act (EPCRA).  A list of the covered chemicals can be found at:http://www.epa.gov/tri/trichemicals/index.htm.

EPCRA differs from many other federal environmental regulatory programs in that instead of regulating or limiting emissions, it covers products or product components that have hazardous components and are being stored, manufactured or processed on site.

Certain persistent, bioaccumulative and toxic chemicals identified by the U. S. Environmental Protection Agency (EPA) have lower reporting thresholds (from less than 0.1 grams of dioxin and up to 100 pounds of aldrin, lead, lead compounds, methoxychlor and several other harmful chemicals).

EPCRA was enacted by the U. S. Congress in 1986 after several noteworthy incidents involving health-threatening releases of chemicals.  Most significantly, in 1984 a deadly cloud of methyl isocyanate killed thousands in Bhopal, India and a subsequent serious release of the same substance from a Union Carbide facility in West Virginia where 100 were hospitalized.

The reports, which are required under the EPCRA must be filed with federal, state and local emergency response authorities.  Over 20,000 facilities filed reports last year.  EPA and states compile the chemical disclosures and maintain publicly available databases.  Information as to specific chemicals is provided to local authorities who in turn provide the information to first responders who may be called to a company sites to deal with a spill, a chemical release or in response to an event such as a fire or other incident.

After EPCRA was enacted, the EPA was directed to create a regulatory reporting program.  Under EPCRA’s Section 313, EPA and the States are required to collect data annually on releases and transfers of certain toxic chemicals from industrial facilities.

The cornerstone of the EPCRA program is the requirement that companies that are subject to the law must file Toxic Chemical Release Inventory Report (also known as Form R) reports by the July 1st deadline.  Failure to file in a timely manner or omissions from filings with federal, state or local authorities may subject a company to civil or administrative penalties.  Copies of Form R and instructions to complete the form can be found at:http://www.epa.gov/tri/report/rfi/ry2010rfi_061511.pdf.

EPCRA Section 325 allows civil and administrative penalties ranging up to $10,000-$75,000 per violation or per day per violation when facilities fail to comply with the reporting requirements. Criminal penalties up to $50,000 or five years in prison apply to any person who knowingly and willfully fails to provide emergency release notification.   A summary of recent EPCRA cases from across the country can be found at: http://www.epa.gov/oecaerth/civil/epcra/epcraenfenvresults.html.

An EPA Fact Sheet that summarizes EPCRA reporting requirements can be found at: http://www.epa.gov/oem/docs/chem/epcra.pdf.

EPA closely monitors reports that are filed and periodically checks submissions against past disclosures by a company or by other companies in particular manufacturing sectors.  EPA closely coordinates its inspections and reviews of filings with state emergency authorities.  EPA conducts random and complaint inspections.  Although EPA may call in advance of a visit, the reporting deadlines are hard due dates.  EPA will generally not consider corrective filings or measures to remedy deficiencies.  When reports are incomplete (chemicals are missing or amounts are misstated) or filed in an untimely manner (even one or two days late), EPA reserves the right to initiate an enforcement action where it may seek civil or administrative penalties.

Environmental attorney Joseph Maternowski regularly assists clients who must make filings under EPCRA.  Joe defends clients in federal and state EPCRA enforcement actions and assists in the contest or resolution of these matters.  Mr. Maternowski evaluates cases to determine when and if a company may avail itself of audit protections under the EPA’s audit and self-disclosure policies.

For more information on Joe’s background and practice, please visit his You Tube site and watch two videos at: http://www.youtube.com/watch?v=p1Ybc9Acm8k and http://www.youtube.com/watch?v=bJTDvveG0jY.

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