The Emergency Planning and Community Right-to-Know Act (EPCRA) mandates that companies maintain hazardous chemical information to support state and local emergency planning and response for community awareness. EPCRA also requires reporting on the storage, use and release of hazardous chemicals to federal, state and local regulatory government agencies. In addition, facility site location maps must be kept up to date to reflect any changes in chemical storage location and types of storage, as well as providing updated reports for new hazardous chemicals above the reporting threshold to local fire departments and local and state emergency planning commissions.
Even with EPCRA having been the law of the land for 30 years, however, compliance experts regularly see many organizations that believe they are in compliance when they actually have lax policies and inadequate recordkeeping.
The reality is that failure to comply can have catastrophic results.
In April 2013, the West Fertilizer Co. (WFC) storage and distribution facility in West, Texas was destroyed as the result of an ammonium nitrate explosion, killing 15 (including 12 first responders) and injuring more than 160 others.
The WFC Final Report, issued January 2016, noted multiple violations of EPCRA, as well as violations of OSHA and EPA regulations such as including lack of fire detection systems and the improper reporting of the ammonium nitrate that caused the blast. These violations ultimately caused amplified physical damage to the facility and surrounding area, and also inhibited containment efforts following the initial disaster.
While complacency can lead to disastrous outcomes as it did in West, Texas, it also can lead to financial ruin for a company if it is fined for non-compliance or criminal negligence by the EPA.
Out of Compliance
Due to a number of factors, many facilities are in violation of at least one provision of EPCRA, usually without managers even realizing it.
For instance, the location of certain chemicals and materials can change over time, such as when the layout of a building changes or there are increases in capacity and equipment. Company turnover also can shift the responsibility of reporting these changes without anyone remembering to maintain the updated paperwork needed to meet compliance. Furthermore, new employees can inherit out-of-date spreadsheets or documentation, creating a “grandfathering” effect that allows inaccurate information to recirculate year after year.
In addition to maintaining the accuracy of current records, historical data also must be accurate, as companies are required to maintain a minimum of three years of documentation onsite. Failure to do so can result in fines by the EPA for up to 5 years after a violation (statute of limitations) including a fine of $37,500 per day if you fail to report. Typically, EPA has assessed the $37,500 per year/per chemical fine for EPCRA Toxics Release Inventory (TRI) violations. However, the agency can use discretion in the assessment of penalties, and the actual fine may be much more severe.