What is Tier II Reporting?

EPA estimates that almost 463,000 facilities in the U.S. must report Tier II chemical inventories annually by March 1. These facilities can be in manufacturing or non-manufacturing, and they can be small, medium, or large. Regardless of the facility type, they all have at least one non-exempt hazardous chemical that requires a safety data sheet (SDS) to be prepared or readily accessible in the workplace under OSHA regulations, and that chemical was present during the previous year at or above its threshold level.

Covered facilities take anywhere from 10 to 120 hours to complete and submit the inventory report form, according to EPA calculations. With that kind of time commitment, facilities often find it helpful to use a consulting service to assess Tier II applicability and complete reports on their behalf. It’s a cost-effective way of having onsite expertise in a facility’s environmental obligations without the overhead of on-staff resources.

Why are Tier II chemical inventory reports required? To understand that, we need to go back to the year 1984. In that year, a cloud of methyl isocyanate gas escaped from a chemical plant in Bhopal, India. By dawn, thousands of citizens were dead, along with buffalo, cows, dogs, and birds. Estimates of the number of people killed in the first few days run as high as 10,000. The following year a facility in West Virginia had an incident where a cloud of toxic chemicals was released, injuring six workers and sending more than 100 residents to the hospital.

These tragedies made news headlines, and, in 1986, Congress quickly passed a bill called the Superfund Amendments and Reauthorization Act (or SARA) to better plan for chemical emergencies and increase state and public participation regarding chemical storage.

SARA is divided into five titles. Title III of SARA is the Emergency Planning and Community Right-to-Know Act (or EPCRA). Tier II requirements are found in section 312 of EPCRA. It’s also codified into the U.S. Code at 42 U.S.C. 11022, which authorized EPA to issue Tier II reporting regulations. Those are found at 40 CFR 370.

EPCRA and 40 CFR 370 do not preempt state and local laws and regulations. That means a state may make its own laws and regulations in addition to or more stringent than the federal. However, Part 370 requirements are always the base in every state.

The applicability of the EPA Tier II reporting requirements (found at 370.10) actually starts with the OSHA Hazard Communication (HazCom) standard at 29 CFR 1910.1200. If a facility owner or operator is required to prepare an SDS (or MSDS, material safety data sheet) or make one readily accessible to employees for a hazardous chemical, then the first applicability criteria of Tier II reporting is met.

EPA does not offer a list of covered hazardous chemicals subject to Tier II reporting. Instead, a substance is a “hazardous chemical” if it meets the definition of “hazardous chemical” under 1910.1200(c) and 370.66.

If a chemical (even a hazardous one) is exempted at 1910.1200(b)(6) or 370.13, then a Tier II report is not required for that chemical. The two lists of exemptions are not identical, so it pays to review both to see if a chemical has an exemption.

Note that EPA offers a “consumer product exemption” at 370.13(c)(1) to any substance packaged in the same form or concentration as a consumer product whether or not it is used for the same purpose as the consumer product. (Note that this is broader than the consumer product exemption at 1910.1200(b)(6)(ix).) Car batteries would be exempt, for example.

However, the consumer product exemption would NOT apply to the type of batteries normally contained in electric forklift vehicles and other large commercial-type batteries. In fact, facilities can quickly get caught under Tier II reporting simply because of their lead-acid forklift batteries, which are a mixture of two Tier II reportable substances — lead and sulfuric acid. EPA offers an April 25, 2007, guidance memo on how to calculate reporting thresholds for lead-acid batteries.

Assuming the chemical requires an SDS and is not exempted, the next step is to look to see if the chemical was present at any time during the previous year at or above the reporting threshold levels specified at 370.10:

• 500 pounds or the threshold planning quantity (TPQ), whichever is lower, for extremely hazardous substances (EHSs) listed at 40 CFR 355 Appendices A and B;
• 10,000 pounds for non-EHS hazardous chemicals (except for certain gasoline and diesel fuel described below);
• 75,000 gallons for gasoline stored entirely underground at retail gas stations in compliance with underground storage tank (UST) regulations;
• 100,000 gallons for diesel fuel stored entirely underground at retail gas stations in compliance with UST regulations; and
• Zero if the State Emergency Response Commission (SERC), Local Emergency Planning Committee (LEPC), or local fire department requests a facility to submit Tier II information.

When calculating thresholds, consider:

• Peak inventory levels;
• Chemical reactions that produce new substances, new intermediates, or byproducts;
• De minimis levels at 370.14(c);
• Converting all weights to pounds (not gallons), except for gasoline/diesel fuel stored entirely underground at retail gas stations in compliance with UST regulations;
• Calculating amounts for mixture components per 370.14;
• Aggregating as required at 370.10 and 370.14; and
• Not relying on the EPA “List of Lists” since it is not a regulation, may be out-of-date, and does not list all Tier II reporting chemicals.

The form gives the reporting period, facility information, and the certification statement on page 1. Page 2 is completed for each covered chemical, including the chemical description, hazard categories, inventory amounts, storage information, and optional information.

If the location is confidential, the facility will check yes on the confidential box on its Tier II and then submit the Tier II Confidential Location Information Sheet with the facility Tier II report. Also, EPCRA allows facilities to file trade-secret claims in their Tier II reports. Only the specific chemical identity may be claimed as a trade secret. (See 40 CFR 350 for details.)

Because it may take time to get organized and make calculations, it is critical to start early. There are NO deadline extensions. Tier II reports are due on or before March 1 of each year for covered chemicals present during the preceding calendar year. This March 1 deadline is firm, even if the reporting deadline falls on a weekend. Put another way, Tier II forms must be postmarked by March 1.

Tier II reports are submitted to the SERC, LEPC, and local fire department with jurisdiction over a facility. States may require a facility to submit Tier II information using Tier2 Submit (the federal electronic reporting format) or the state equivalent electronic reporting format. A facility may also have to register with the state reporting system, and a state may charge fees.

The maximum civil penalty for a Tier II violation is over $71,500, and this figure is increased for inflation each January. If a facility discovers that it missed the March 1st deadline or failed to report in the last five years, the formal approach is to submit a self-disclosure with federal EPA, using its eDisclosure System.

If a facility is required to make SDSs readily accessible in the workplace for hazardous chemicals, it’s important to see if those chemicals are reportable under Tier II. A facility should be sure to also check state requirements and submit reports by March 1 annually. It’s wise to start preparing to report early. The Tier II reporting requirements take time to complete each year, but they are intended to help communities better plan for chemical emergencies. Environmental consultants can assist with this complex reporting requirement.