With 2023 underway, many businesses are gearing up to complete and submit their annual Tier II chemical inventory reports under the federal Emergency Planning and Community Right-to-Know Act (“EPCRA”).  Pennsylvania administers the program through the Department of Labor & Industry. Tier II reports are due by March 1 and therefore businesses should take the opportunity now to review their operations, purchases, and past reporting to ensure that all regulatory requirements under ECPRA are being met.  This blog post provides a brief overview of the Tier II chemical inventory reporting requirements under EPCRA and how those requirements may apply to your business and its operations.

Tier II at 10,000 Feet

Under Section 312 of EPCRA, owners and operators of facilities that meet or exceed specified reporting thresholds for hazardous chemicals must prepare and submit a Tier II chemical inventory report to the State Emergency Response Commission (“SERC”), Local Emergency Planning Committee (“LEPC”), and local fire department each year by March 1 based on the prior year (calendar year 2022) chemical storage.  In Pennsylvania, the Bureau of Occupational & Industrial Safety (part of the Pennsylvania Department of Labor & Industry) serves as the repository for Tier II reports.  These reports are typically submitted electronically using the Pennsylvania Tier II System (“PATTS”).  Unlike other states, Pennsylvania also enforces a mandatory five-day initial reporting rule that requires owners and operators of facilities to submit a Tier II report within five days of meeting or exceeding an applicable reporting threshold under EPCRA. 

In general terms, Tier II reporting requirements apply broadly to chemicals for which a facility is required to maintain a Safety Data Sheet (“SDS”) under the Occupational Safety and Health Administration (“OSHA”) Hazard Communication Standard.  In other words, if you maintain SDSs for chemicals stored or utilized at your facility, you should determine whether the maximum amount of that chemical onsite (at any one time in the past year) met or exceeded the applicable reporting threshold under EPCRA.  In most cases, the applicable reporting threshold is 10,000 lbs., but for certain chemicals, that number is much lower, including many chemicals used or stored in warehouses.

Warehouses and Tier II Reporting

While warehouses and storage facilities may not be engaged in the typical industrial activities that most people would associate with presence or use of hazardous chemicals, ECPRA may still apply to these types of facilities depending on what products and equipment are stored and used in the facility.  One common scenario arises from the use of powered industrial trucks ranging from forklifts to electric pallet jacks.  Warehouses often require the use of such equipment and, depending on the power source, these types of equipment can quickly push a facility beyond the Tier II reporting thresholds.  For example, as many forklifts utilize lead-acid batteries that contain two Tier II reportable chemicals (lead and sulfuric acid), only a handful of such forklifts can trigger Tier II reporting due to the relatively large size of the batteries and the lower reporting threshold for sulfuric acid (500 lbs.).  Similarly, facilities equipped with emergency uninterruptible power supply (“UPS”) systems may also be covered by EPCRA due to the presence of lead-acid batteries in the UPS system at the facility. 

EPCRA reporting could also apply to materials stored in a warehouse or distribution facility.  While there are certain exemptions to triggering EPCRA reporting (including a “consumer products” exemption), storing over 10,000 lbs. of a regulated product or chemical in drums or other vessels may trigger reporting.  For example, diesel fuel weighs approximately 7 lbs./gallon, and therefore a storage tank storing more than 1,428 gallons of diesel fuel could trigger EPCRA Tier II reporting.

Bottom Line: Review Your Operations

Regardless of whether your business is engaged in heavy industrial activities, warehousing/distribution, or even financial services, Tier II reporting requirements may apply and can be triggered in many unexpected ways.  With the reporting deadline of March 1, 2023 for calendar year 2022 quickly approaching, businesses of all shapes and sizes should take the time to evaluate their operations to confirm compliance with EPCRA.  For assistance or help with any questions concerning EPCRA or Tier II reporting, contact any member of the McNees Environmental Law & Toxic Tort Group.