Late 2008 Environmental Regulatory Changes

The U.S. Environmental Protection Agency (EPA) was active in late 2008, publishing several proposed, direct final, final rules, and notices regarding environmental issues of concern to our clients. Among the more interesting of these actions are the following:

EPCRA Reporting: Good News / Bad News

Good News. In a rulemaking dated November 3, 2008 and effective December 3, 2008, EPA published several changes to reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA) relating to Extremely Hazardous substances (EHS). The EHS rules, codified in the 40 CFR Part 355 Emergency Planning and Notification Provisions, apply to any facility which has an EHS present in an amount equal to or greater than the established threshold planning quantity (TPQ) of the chemical.¹ In the new rulemaking, the Part 355 Rules have undergone a makeover into EPA’s new “user-friendly” Q & A format, which is always good news for the regulated community; however, besides the format change there is other, substantive good news on the EPCRA/EHS reporting front. First, in the new rule EPA has clarified how to assess and report mixtures that contain EHS when pure forms of an EHS also exist on-site, and clarifies other aspects of reporting mixtures containing EHS. EPA has also clarified, in 40 CFR Part 355.30(c), that a facility’s initial notification of EPCRA applicability must include the name of the facility emergency coordinator. (This requirement was not clear in earlier rules.) Further, the revised rules contain a very useful table (See 40 CFR § 355.20) that clearly summarizes a company’s obligations under the Part 355 standards; obligations under the statute and regulations were formerly scattered between the statute and the rules. Copies of the new rules and compliance chart can be obtained from Seyfarth’s ESTT group.

Bad News. Along with the good news on EPCRA/EHS reporting comes some bad news. The new rule has provisions that specifically require facilities to notify the Local Emergency Planning Committee (LEPC) of changes in the status of the EHS they handle. (Previously, recordkeeping requirements included initial notifications and release reporting, but “changes in use” were captured in 312 Hazardous Chemical Inventory Reports.) Under the new rules, facilities handling EHS and subject to EPCRA Part 355 must provide notice of “changes relevant to emergency planning” to the LEPC within 30 days of the change in use of the chemical. Examples of changes that require notification to the community include when a facility moves EHS to a new location in a facility, removes EHS from a facility permanently, adds new EHS, or closes a facility.

The rule change requiring notices of change-in-use is controversial mainly because it requires a notice to the local government of the closing of a facility subject to EHS rules, and notification when a chemical is no longer used at a facility. Such notice is somewhat unique in environmental law; very few environmental rules require facilities that cease operations to notify the state or local government of such cessation, and those requirements are generally aimed at sites that are traditionally highly regulated under environmental laws, such as RCRA-regulated hazardous waste disposal facilities. Compared to highly regulated businesses such as chemical manufacturers and users, the EHS rules apply to facilities that are otherwise not widely or heavily regulated, such as warehouses, distribution facilities, and retail operations not accustomed to notifying the government when they make changes in operations, cease the use of a particular chemical, or cease operations. Examples:

• A food warehouse facility with 20 fork-lift trucks with batteries containing (in total) more than 1,000 pounds of sulfuric acid will not only be subject to the EHS notification requirements at the start of operations, but under new rules now must report to the local emergency planning committee if the facility closes, ceases using batteries with a sulfuric acid, changes the number of batteries used and thus falls below the TPQ, or changes the location of battery storage.
• Similarly, facilities with back-up batteries or fuel for emergency generators subject to EHS rules will need to report changes in use of batteries and fuel. Failure to comply with EPCRA EHS requirements carries heavy penalties (up to $75,000 per day).