EPA Focuses on Sector-Based Right-to-Know Compliance and Enforcement.

Introduction

Anhydrous ammonia poses a significant threat to public health and to the safety of our nation's first responders. This hazardous chemical is a colorless gas with a pungent, suffocating odor. Anyone who has used ammonia in the home has experienced the effect it has on the eyes and respiratory system. Just opening a container of ammonia packaged for household use can be overpowering. One can only imagine the effects a large release of the chemical might have on a community including sensitive populations.

To emphasize the importance of reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and to raise awareness about hazards from anhydrous ammonia, the U.S. Environmental Protection Agency (U.S. EPA) selected the Food and Kindred Product Sector for a compliance and enforcement initiative. The choice of this sector was based on the number of facilities found in violation of EPCRA Sections 304 and 312. This paper reports on results from the project in EPA Region 5.

Regulatory Background

In 1986, Congress passed the Superfund Amendments and Reauthorization Act. Attached to the Reauthorization was the EPCRA, modeled after many of the state right-to-know acts already in place across the nation. EPCRA requires that releases of hazardous substances be reported immediately and that storage of hazardous chemicals above certain threshold amounts also be reported to various government agencies who are charged with protecting public health and the environment.

Section 312 of EPCRA requires facilities to submit information regarding their stored chemicals to the State Emergency Response Commission (SERC), the Local Emergency Planning Committee (LEPC), and the local fire department by March 1 of each year. The Section 312 reporting requirement is triggered when, under the Occupational Safety and Health Act, a facility is required to have a material safety data sheet (MSDS) for a hazardous chemical on site and has a hazardous chemical on site in quantities that are equal to or greater than a minimum threshold level. Hazardous chemicals are defined as chemicals that pose a physical or health hazard. The minimum threshold level for hazardous chemicals is usually 10,000 pounds. For some hazardous chemicals that pose a particularly great threat to the community should a release occur a lower threshold has been established. These chemicals are known as extremely hazardous substances (EHSs). The threshold for EHSs is the threshold planning quantity (TPQ) or 500 pounds, whichever is lower. Anhydrous ammonia is an EHS.

The information provided in the annual reports required by EPCRA is used by state and local government agencies to plan response actions should an accidental release occur. It is critical that the local responders know what chemicals are on site before they respond to an emergency situation at a facility. This knowledge can mean the difference between life or death for a first responder. It also ensures that state and local responders have the proper equipment and manpower to respond to the various emergency situations that may occur in their area. Without this knowledge, a response could be delayed, potentially causing unnecessary exposure not only to the responders but also to the adjacent community and the environment.

In addition, since the information submitted under Section 312 is available to the public, the failure to submit this information denies the public the right to know about the chemicals and the hazards posed by those chemicals in their community.

Project Description

Nationally, U.S. EPA issues numerous enforcement actions each year for failure to immediately report releases of ammonia (a requirement of Section 304 of EPCRA) and for failure to report the storage of ammonia as required by Section 312. U.S. EPA has pursued many enforcement actions against facilities that have ammonia refrigeration systems at food-related facilities. Therefore, in 1996, U.S. EPA chose selected facilities in the Food and Kindred Products Sector, Standard Industrial Classification (SIC) Code 20, as the target of a national sector-based initiative. In addition to using ammonia for refrigeration, these facilities often store large quantities of chlorine, sulfuric acid, and nitric acid used for cleaning food-manufacturing equipment, as well as certain chemicals typically used in food products.

Anhydrous ammonia has many uses. It is used as a fertilizer, a feed stock for making other chemicals, a refrigerant, and, in low concentrations, a household cleaner. The potential adverse health effects include bums to the skin or eyes, respiratory tract irritation, blindness, and possibly death if large concentrations are inhaled over prolonged periods. The average time before life-threatening injury could occur is about 30 minutes.

From the SIC code 20 series, U.S. EPA selected 16 codes representing the operations most likely to use refrigeration containing anhydrous ammonia in quantities greater than the TPQ or 500 pounds. The 16 codes are 2011, 2013, 2015, 2021, 2024, 2026, 2037, 2038, 2041, 2045, 2051, 2053, 2091, 2092, 2097, and 2099. Nationally, about 9,000 facilities are known to fall within these SIC Codes; approximately 3,947 are in the six states of EPA Region 5: Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin.

In October 1996, U.S. EPA sent an informational packet to facilities that fell within the 16 selected codes and requested that they review their chemical inventory and their reporting practices under Section 312 of EPCRA for calendar year 1995 (reports due March 1, 1996). Information on whom to contact to obtain the appropriate state forms to come into compliance was included for those facilities learning about EPCRA for the first time and for those that were not in compliance and needed to file the appropriate forms.

As a result of this mailing, 1,798 facilities in Region 5 indicated that they did not need to report under EPCRA Section 312, and 451 facilities in Region 5 indicated that they had reported. Many others may have come into compliance because of the informational packet. This phase of the project focused on bringing as many facilities into compliance as possible; it was not designed to determine the number of facilities out of compliance.

Facilities that did not respond to the initial mailing were sent a second packet. This second mailing provided these facilities another opportunity to identify their EPCRA Section 312 reporting status. If the facility was not required to report, it could respond by checking the appropriate box on the response sheet and forwarding it to Region 5 in a self-addressed envelope. Facilities that were required to report and that had not previously reported were allowed a limited time to sign a Sector Agreement, according to which they would come into compliance in exchange for a reduced penalty of $2,000. The reduced penalty was available regardless of the number of chemicals involved and the number of years a facility had been out of compliance. The statutory maximum penalty for violations of EPCRA Section 312 was $25,000. (While Section 325 of EPCRA provides for a statutory penalty of $25,000 for violations of Section 312 and for violations that occurred after January 31, 1997, the Civil Monetary Penalty Inflation Adjustment Rule, published at 40 C.F.R. Part 19, has increased the statutory maximum penalty to $27,500 for each violation.) The statutory penalty may be assessed for each day that a facility is out of compliance, and a separate penalty may be assessed for each point of compliance. The SERC, the LEPC, and the local fire department are all separate points of compliance. Approximately 2,500 facilities nationwide received this second mailing, of which 1,363 were located in Region 5.

The reduced penalty encouraged 64 facilities in Region 5 to come into compliance; 42 facilities indicated that they were already in compliance, and 614 facilities indicated that they were not required to report under Section 312 of EPCRA. There were 393 facilities that did not respond. The nonresponding facilities became candidates for an EPCRA compliance inspection or an information request.

Ultimately, U.S. EPA Region 5 inspected 13 facilities and sent information requests to the remainder. Through this follow-up, U.S. EPA discovered an additional 18 out-of-compliance facilities. These establishments had all received the previous two mailings and had not responded. U.S. EPA offered a third opportunity to come into compliance with a reduced penalty of $8,000. Although this penalty was higher than the first offer, it was still significantly less than the $25,000 per day that U.S. EPA could propose under the statute. The project concluded in 1999.

Summary

The sector-based approach allowed U.S. EPA to reach and work with many more facilities than would have been possible with the agency's traditional enforcement approaches. Through this effort, U.S. EPA provided EPCRA information to approximately 4,000 facilities in Region 5, and the project directly brought at least 82 facilities in the region into compliance. The increased awareness of the reporting requirements and the increased number of facilities brought into compliance will help state and local authorities plan for emergency situations, thus reducing the threat of exposure should an accidental release occur.

By offering reduced penalties as an incentive, U.S. EPA was able to bring a large number of facilities into compliance across an industrial sector. A federal and state working relationship was a key to the success of this project; the project encouraged states to work with U.S. EPA and to become more proactive in ensuring EPCRA compliance. Readers looking for more information about EPCRA might want to visit the U.S. EPA Web site at [less than]www.epa.gov/swercepp[greater than] or call the EPCRA hotline at [phone].

Corresponding Authors: James Entzminger or Ruth McNamara, c/o Mick Hans, Media Relations (P-19J), U.S. EPA Region 5, 77 W. Jackson Blvd., Chicago, IL 60604.