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Volume 2: Complying with Environmental, Health And Safety Requirements for Activities Involving Hazardous Chemicals

Lorraine O'Donovan, EHSQ Alliance Affiliate

This is the second book in a multi-part series explaining the regulations triggered when your organization acquires and uses chemicals. This volume focuses on worker protection, emergency planning and community right-to-know, and fire/building codes. 

By JON F. ELLIOTT BSE, MPP, JD, writing for SPECIALTY TECHNICAL PUBLISHERS (STP), an EHSQ Alliance Affiliate. 

WORKER PROTECTION AND RIGHT TO KNOW

The federal OSH Act and OSHA standards provide a wide variety of requirements for employers, some of which apply generally across many types of workplaces, while others are tailored to specific activities. Most requirements are triggered by the presence of any amount of a targeted chemical in the workplace, with additional requirements applicable if quantities of chemicals, airborne concentrations, and/or types of exposures exceed specified threshold limits.

General Duty Clause

Employers owe a “general duty” to all their employees, to do the following:

• Furnish employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees; and

• Comply with all applicable standards, rules, and orders.

These points do not merely require compliance with specific standards already adopted and enforced by

OSHA. The first point requires employers to identify and abate potential hazards that are not yet covered by OSHA or state standards. There are no mandatory national standards for doing so, although OSHA has promulgated voluntary Safety and Health Program Guidelines.  A number of states require specified employers to develop such programs (called Injury and Illness Prevention Programs (IIPPs) or Accident Prevention Programs (APPs) depending on the state).

For example, California requires that each employer’s IIPP contain the following elements:

• Responsibility: identify the person(s) responsible for implementing the IIPP;

• Compliance: a system for ensuring that employees comply with safe and healthful work practices;

• Communication: a system for communicating occupational safety and health information in readily understandable forms to employees;

• Hazard Assessment: a system for identifying and evaluating workplace hazards, including periodic inspections;

• Accident/Exposure Investigation: procedures for investigating reported workplace injuries and illnesses;

• Hazard Correction: methods and procedures for timely correction of unsafe and unhealthful conditions and work practices;

• Training and Instruction: training for all new and reassigned employees in safe and healthful work practices; and

• Record keeping: retention of most IIPP-related compliance records for at least one year.

Chemical hazards and protections are important topics for these programs, along with physical hazards from electricity, moving equipment, falls, etc.

Hazard Communication Standard

If you have employees who handle chemicals, you’re almost certainly subject to OSHA’s Hazard Communication Standard (HCS). HCS requires chemical manufacturers and importers, and employers using hazardous chemicals (end users), to inform employees of the risks of workplace exposures to their chemicals.

OSHA revised and expanded these requirements in 2012, culminating six years of domestic rulemaking and catching up with twenty years of international work alongside other countries on the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). Employers could comply with these changes as early as their effective date of May 25, 2012, and were required to do so by a series of phase-in deadlines during 2013 through 2016. States with delegated programs have adopted conforming changes. OSHA’s revised requirements are as follows:

Defining Hazardous Chemicals and Substances

HCS requires employers to address “hazardous chemicals,” which present “health hazards” and/ or “physical hazards.” These definitions now cover:

• Health hazards are any of the following hazardous effects: acute toxicity (any route of exposure); skin corrosion or irritation; serious eye damage or eye irritation; respiratory or skin sensitization; germ cell mutagenicity; carcinogenicity; reproductive toxicity; specific target organ toxicity (single or repeated exposure); or aspiration hazard.

• Physical hazards are any of the following hazardous effects: explosive; flammable (gases, aerosols, liquids, or solids); oxidizer (liquid, solid or gas); self-reactive; pyrophoric (liquid or solid); self-heating; organic peroxide; corrosive to metal; gas under pressure; or in contact with water emits flammable gas.

However, exemptions apply to several categories of chemicals covered by other EH&S requirements (including a number addressed in these eBooks): articles; hazardous wastes; tobacco or tobacco products; wood or wood products; food, drugs, or cosmetics in their final form for consumer use, and/or onsite intended for an employee’s personal use; consumer products packaged for the general public, provided that employee exposure to the product is not significantly greater than the consumer exposure during normal use; hazardous substances subject to remedial or removal actions under Superfund; nuisance particulates that do not pose a physical or health hazard; ionizing and nonionizing radiation; and biological hazards.

HCS also defers to labeling requirements in several other labeling laws and regulations, including: pesticides regulated by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and agricultural or vegetable seeds treated with pesticides and labeled under the Federal Seed Act; “chemical substances” and “mixtures” as defined by the Toxic Substances Control Act (TSCA); food, food additives, drugs, cosmetics, and medicinal or veterinary devices or products regulated under the Federal Food, Drug and Cosmetic Act; alcoholic beverages subject to regulation by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); and consumer products or hazardous substances regulated by the Consumer Product Safety Act or Hazardous Substances Act.

Hazard Determination

HCS requires employers to undertake a “hazard determination” to identify and characterize hazards posed by chemicals in their workplaces. Manufacturers and importers are subject to more exhaustive requirements than are end users. Manufacturers and importers of hazardous chemicals evaluate and classify them according to the hazard types identified above. A manufacturer or importer generally is not required to conduct testing if it can evaluate hazards without testing, for example by relying on information for individual constituents in a hazardous mixture (prepared for TSCA compliance and summarized in Safety Data Sheets (SDSs) and older Material Safety Data Sheets (MSDSs); see next bullet). They must consider as hazardous any substance that is: on OSHA’s air contaminant lists (see below); subject to a threshold limit value (TLV) established by the American Conference of Governmental Industrial Hygienists (ACGIH); or recognized nationally as a carcinogen. HCS provides criteria for determining whether a chemical is hazardous. For mixtures, employers must consider all constituents that meet either of the following descriptions:

• Make up 1% or more of the mixture or product; or are designated as carcinogenic by OSHA and make up at least 0.1% of the mixture or product; or

• Make up less than these proportions, but could be released in concentrations that would present a health hazard to workers (e.g., exceed permissible exposure limit (PEL), short-term

exposure limit (STEL), or other workplace exposure limit.

End-use employers who use these chemicals are subject to similar requirements, but may rely on SDSs/MSDSs supplied by the manufacturer or importer, instead of performing their own evaluations. Most end-use employers do so.

Summarizing information on Material Safety Data Sheets and Safety Data Sheets

From 1983 through 2015, MSDSs provided the most basic source of hazardous chemical information. HCS required chemical manufacturers and importers to develop or obtain an MSDS for each hazardous chemical. Extensive standards described the type of information that should be presented, and less clear guidance about the scope and presentation of this information. OSHA did not mandate any particular format for MSDSs. MSDSs were superseded by SDSs, no later than June 1, 2015. However, many employers still have MSDSs, for example for chemicals that haven’t been re-purchased since 2015. Since both requirements are presently ‘live,’ here are summaries of each.

SDS. Effective May 25, 2012, HCS provides rules for chemical manufacturers to obtain or develop an SDS for each chemical they produce or import, and requires employers to have an SDS in the workplace for each chemical present. Each SDS must provide information in the following 16 numbered sections:

1. Identification;

2. Hazard(s) identification;

3. Composition/information on ingredients;

4. First-aid measures;

5. Fire-fighting measures;

6. Accidental release measures;

7. Handling and storage;

8. Exposure controls/personal protection;

9. Physical and chemical properties;

10. Stability and reactivity;

11. Toxicological information;

12. Ecological information;

13. Disposal considerations;

14. Transport information;

15. Regulatory information; and

16. Other information, including date of preparation or last revision.

The 2012 HCS revisions also adopt a new appendix D with specific information about each section.

MSDS. OSHA required each MSDS to provide at least the following information:

• Chemical identity, as used on the container label;

• Chemical and common name(s), for a pure chemical and for an entire mixture that has been tested as a whole to determine its hazards;

• For mixtures that have not been tested as a whole, the chemical or common name of each ingredient that meets any of the following tests:

     – Poses a health hazard and appears in concentration of 1 percent or more;

     – Is a carcinogen, and appears in concentration of 0.1 percent or more;

     – Poses a health hazard, and could be released in a concentration that would exceed an OSHA PEL or a TLV adopted by ACGIH; or

     – Poses a physical hazard in the mixture.

• Physical and chemical characteristics of the hazardous ingredients (e.g., flash point, vapor pressure), and any physical hazards (e.g., flammability, reactivity, and potential for explosion);

• Health hazards, including exposure symptoms and primary exposure route(s);

• Exposures limits (such as PELs, TLVs);

• Whether or not any hazardous ingredient is a carcinogen or potential carcinogen;

• Any applicable safe-handling and -use precautions, control measures, and emergency and first aid procedures; and

• Name, address, and telephone number of the person who prepared the MSDS, and the date of its most recent version.

Labeling

Each chemical manufacturer or importer must ensure that each container of hazardous chemical is labeled, tagged, or marked. HCS requires the following information:

• Product identifier;

• Signal word;

• Hazard statement(s);

• Pictogram(s);

• Precautionary statement(s); and,

• Name, address, and telephone number of the chemical manufacturer, importer, or other responsible party.

The 2012 revisions amend specific requirements, and provide details in a new appendix C. The revised HCS also requires that labels include the hazard class in English (plus other language(s) as appropriate). Limited exceptions are available. First, employers may use signs, placards, process sheets, batch tickets, operating procedures, or other similar materials for stationary process containers. Second, employers are not required to label portable containers into which an employee transfers a hazardous substance from a labeled container for immediate use during his or her shift. Third, as summarized above, other regulatory requirements supersede for specified categories of chemicals, such as pesticides and hazardous waste.

Information and Training

Employers must provide information and training to all employees who will work with or be exposed to “effective” hazardous substances, when the employees receive their first work assignment, and again whenever a new chemical hazard is introduced into their workplace.

Employees must be informed of:

• Requirements of HCS;

• Operations in their work area involving the presence of hazardous chemicals (including physical, health, simple asphyxiation, combustible dust, pyrophoric gas, and “not otherwise classified” hazards);

• Location and availability of the employer’s written hazard communication program, including chemical lists and SDSs/MSDSs;

• Rights of employees, their physician and representative to receive information regarding hazardous substances to which employees may be exposed; and

• Employee rights as designated in the federal OSH Act, which can be asserted without fear of retaliation or discharge.

Employee training must include at least the following:

• Methods to detect a release of hazardous substances into the work area;

• Physical and health hazards of substances in the work area;

• Measures employees can take to protect themselves from exposures, including appropriate work practices, emergency procedures, and use of PPE; and

• Explanations of the employer’s hazard communication program, including SDSs/MSDSs, workplace labeling, and methods of obtaining and using appropriate hazard information. 

Employers may address classes of hazards (e.g., all flammables) rather than target each and every hazardous chemical in the workplace separately. However, a separate SDS/MSDS must be maintained for each chemical. Employers must train employees regarding SDSs and labeling requirements (and should consider whether some MSDSs are still present).

Written hazard communication programs

Employers must develop, implement, and maintain at each workplace a written hazard communication program. Programs must include elements addressing the following:

• Labels and other workplace warnings;

• SDS/MSDS availability;

• Employee information and training;

• List of hazardous chemicals in the workplace, referencing SDSs/MSDSs;

• Methods to inform employees about the hazards of nonroutine tasks; and

• Hazards associated with chemicals in unlabeled pipes.

OSHA’s inspection and citation policy requires that these programs designate persons responsible for each compliance task. In multi-employer workplaces, where employees of other employers (such as subcontractors) may be exposed, each employer responsible for hazardous chemicals must provide written procedures to inform and warn these other employers and their employees of the hazards present.

Additional Standards for Chemicals Classes and Specific Chemicals

For many of the tens of thousands of chemical products used in American workplaces, HCS – plus the Employer’s General Duty Clause – may provide the employer’s only specific responsibilities. Because HCS applies to virtually all chemicals, it takes a “one size fits all” approach to chemical information and training, leaving employers to tailor their individual programs to suit their circumstances … or not. In the four decades since enactment of the OSH Act, however, OSHA has issued:

• General standards for types of exposures, including workplace air contaminants, carcinogens, and flammable liquids; and

• Individual standards for a handful of specific chemicals

Air contaminants

OSHA’s Air Contaminants Standard regulates chemicals that have the potential to contaminate ambient air in workplaces. This standard is designed to protect employees from both immediate and long-term consequences of exposures to airborne chemicals and particulate contaminants in workplace air. OSHA identifies hundreds of air contaminants in several “Z lists.” These include volatile industrial solvents like benzene, ethyl alcohol, and chloroform); toxic metal dusts; fumes of lead, chromium, mercury, and others; as well as “nuisance dusts” and other particulates like silica. Because of the breadth of the lists many workplaces contain at least one of the contaminants.

Employers must prevent employee exposures to air contaminants at levels that would exceed applicable standards. OSHA uses several methods to determine acceptable concentration levels, including:

• PEL (permissible exposure limit): the maximum eight-hour weighted average of the airborne concentration of the contaminant;

• STEL (short term exposure limit): the maximum 15-minute weighted average of the airborne concentration of the contaminant at any time during a workday; and

• Ceiling limit: total airborne concentration that must never be exceeded.

If an employer determines through workplace air monitoring that employees’ exposures would exceed any applicable limits, the employer must reduce employee exposures below the limits, using the following means, in the following order or preference:

• Administrative controls, which include practices such as work scheduling and procedures;

• Engineering controls, which include ventilation, equipment design, and facility management; and

• PPE for workers.

Carcinogens

OSHA also regulates the use of 28 specified carcinogens in workplaces. These requirements cover workplaces where any regulated carcinogen is manufactured, processed, repackaged, released, handled, or stored. OSHA imposes identical requirements on 13 regulated carcinogens listed in its Carcinogen Standard: 4-Nitrobiphenyl, alpha-Napthylamine, Methyl chloromethyl ether, 3,3 -Dichlorobenzidine (and its salts), bis-Chloromethyl ether; beta-Napthylamine, benzidine, 4-Aminodiphenyl, ethyleneimine, beta-Propiolactone, 2-Acetylaminofluorene, 4-Dimethylaminoazobenzene, and N-Nitrosodimethylamine.

Additional carcinogens are regulated separately. Mixtures with low enough concentrations of these regulated carcinogens are exempt.

Employers with any regulated carcinogens in their workplaces must do at least the following:

• Establish formal regulated areas where carcinogens are used;

• Establish and implement protective measures covering handling and use of carcinogens;

• Provide signs and information;

• Protect regulated areas;

• Establish emergency procedures for regulated areas;

• Provide training and indoctrination to employees who enter regulated areas; and

• Provide medical surveillance to monitor possible health effects on employees who work with carcinogens (including initial medical examination and periodic examinations at least annually thereafter).

These elements should be addressed in a written compliance program covering the use of each carcinogen.

Additional Chemicals, by Class of Hazards

A number of OSHA Standards target all the chemicals and substances within a particular class of hazards. Most such standards include general requirements applicable to that class of hazard, including design specifications for storage and/or use equipment, handling requirements, and housekeeping. These class-based standards include the following:

• Flammable liquids (i.e., flash point below 199.4 oF (93 oC))

• Explosives and blasting agents

• Liquid petroleum gases

• Hazardous compressed gases (e.g., hydrogen, acetylene)

• Bloodborne pathogens

Other Specific Chemicals

Additional standards cover specific chemicals, including anhydrous ammonia, asbestos, vinyl chloride, inorganic arsenic, lead, cadmium, benzene, beryllium, coke oven emissions, cotton dust, 1,2-dibromo-s-chloropropane, acrylonitrile, ethylene oxide, formaldehyde, hexavalent chromium, methlenedianiline, 1,3-butadiene, methylene chloride, and respirable crystalline silica. If any of these are present in a workplace where employees might be exposed, the employer must establish evaluation, monitoring, control, and medical surveillance programs similar to those described above for carcinogens.

Additional Standards for Specific Chemical-Using Activities

Additional OSHA Standards target classes of activities that involve extensive handling of particular chemicals or classes of chemicals. The standards typically include:

• Design and construction standards for equipment and devices

• Engineering requirements for workplaces (e.g., ventilation)

• Administrative controls, including self-inspections, work practices, and housekeeping

• Practices for the chemical-using activities

• Training and other information (e.g., labels)

Standards applicable to categories of chemical-using activities include:

• Welding

• Dipping and coating operations

• Spray finishing using flammable and combustible materials

• Laboratory safety

• (Chemical) process safety management (PSM)

• Hazardous waste operations and emergency response (HAZWOPER)

Recording and Reporting Occupational Injuries and Illnesses

OSHA requires employers to prepare and maintain records of occupational injuries and illnesses (I&Is), and to make selected information available to employees and/or agencies. Most employers must maintain a Log and Summary of Occupational Injuries and Illnesses (Log and Summary), using OSHA Form 300 or an equivalent for the Log, and OSHA Form 300A for the Summary. Recordable occupational injuries and illnesses include:

• Fatalities, regardless of the time between the injury or illness and death

• Cases that involve any lost workdays. Nonfatal cases without lost workdays, but result in transfer to another job or termination of employment, or require medical attention beyond first aid, or involve loss of consciousness or post-incident restriction of work or motion, or involve occupational illnesses reported to the employer.

In addition to this routine recording, employers must report serious incidents promptly to OSHA. Deadlines are 8 hours for a fatality, and 24 hours for incident resulting in in-patient hospitalization, amputation, or loss of an eye.

Employers must complete the Log and Summary with the previous year’s statistics and post it annually, by February 1, at each facility in a place where notices to employees are customarily posted. (Employers with no fixed place of business are subject to special record-keeping provisions.) The Log and Summary must remain posted for at least three months (i.e., throughout February – April). Employers with any workplace with 250 or more employees must also submit Summary (Form 300-A) information electronically to OSHA using the Injury Tracking Application (ITA) provided by the agency; beginning in 2019 (2018 information) these submissions are required each March 2.

EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT

The primary national hazardous material management and information law is called the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). EPCRA consists of several separate provisions, each of which requires regulated entities to collect and report information to emergency planning and response agencies, which make information available to the public. These provisions had initially been proposed separately, but were compiled together into Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA) in order to attract enough votes to pass

Congress. Because of this history, EPCRA sometimes is referred to as “SARA Title III.” EPCRA is administered nationally by the US Environmental Protection Agency (EPA), and some provisions are also overseen by individual state and local planning and response agencies.

Emergency planning involving extremely hazardous substances (EHSs)

Defining EHS and establish Threshold Planning Quantities

The first set of EPCRA requirements (SARA sections 301–303) applies to a list of toxic and flammable materials defined by EPA. Listed chemicals are referred to as extremely hazardous substances (EHSs). EPA defines threshold planning quantities (TPQs) for each EHS, used in the planning processes described below. TPQs range from 1 pound to 10,000 pounds, based on EPA’s assessment of the quantities necessary to create offsite hazards, considering such factors as toxicity and volatility. TPQs cover solids, liquids and gases, and some vary with the EHS’ physical state.

Facilities must evaluate mixtures that contain any EHS as a constituent, and calculate whether the amount of EHS in a mixture exceeds its TPQ. Generally, these calculations are required if the mixture contains more than 1 percent for most EHS, and 0.1 percent for carcinogens (different adjustments apply to solids, depending on whether they are powders, molten, or in solution).

Reporting to emergency planning agencies

Each facility must consider the maximum amount of any EHS onsite, and report each EHS that meets or exceeds its TPQ to the local emergency planning committee (LEPC; within each local emergency planning district (LEPD)) with jurisdiction over the facility. LEPDs are defined by the state emergency response commission (SERC). In most states, the general-purpose state emergency response organization provides staffing; some “commissions” actually consist of the state emergency response organization. EPCRA mandated the creation of SERCs and LEPCs/LEPDs; most LEPDs cover an individual county or city.

Each facility with any EHS present at or above the applicable TPQ must do the following:

• Notify the SERC and LEPC within 60 days after meeting the threshold

• Provide a facility contact for information on these matters

• Provide updated notification within 30 days after any change to reportable EHS or the contact

For this portion of EPCRA, regulated facilities’ responsibilities are limited to these notifications. State and local planning agencies prepare detailed emergency response plans covering potential EHS releases in their jurisdictions, consistent with standards in EPA’s regulations.

Reporting EHS releases

The second set of EPCRA requirements (SARA section 304) covers unauthorized discharges (leaks or spills) of any EHS. This section adds reporting of released EHS into the national emergency reporting framework for oil (under the Clean Water Act) and hazardous substances (under the federal Superfund laws).

RQs for EHS vary from 1 pound up to the same quantity as the TPQ. This requirement is not limited to facilities subject to reporting and planning requirements described immediately above (i.e., those with at least a TPQ amount), but must be considered by any facility where an RQ amount is present that could potentially be released.

Initial reports must be made by telephone to the National Response Center, the appropriate state agency (most states have spill reporting numbers), and appropriate local agencies. Subsequent written followup reporting is also required, within 30 days. Exemptions cover releases that only affect people onsite at the facility, are authorized by a federal permit or regulation (e.g., Clean Water Act), are “continuous releases,” or are releases of less than 1,000 pounds in 24 hours of nitrogen oxide or nitrogen dioxide from combustion or combustion-related activities.

Reporting hazardous substances in the workplace

The third set of EPCRA requirements (SARA sections 311 – 312) applies to all facility owners or operators required by the federal OSH Act to prepare or have available safety data sheets (SDSs) or material safety data sheets (MSDSs) (see above).. Owners or operators of facilities subject to these requirements must report SDS/MSDS information for chemicals present at their facilities in quantities equal to or greater than established thresholds, and must also submit annual inventories of hazardous chemicals present at their facilities at or in excess of established thresholds.

EPA sets the same reporting thresholds for Section 311 and 312. Owners or operators of subject facilities must submit SDS/MSDS reports and annual chemical inventories for all hazardous chemicals present onsite at any time during the previous calendar year in quantities equal to or greater than the following:

• For hazardous chemicals—10,000 pounds (except fuels stored in underground storage tanks (USTs; see volume III of these ebooks) at retail gas stations is 75,000 gallons for gasoline and 100,000 gallons for diesel fuel); and

• For EHS—the lesser of 500 pounds or the chemical’s TPQ.

EPA allows facilities to group these chemicals into the hazard categories used by OSHA in HCS (see above) for EPCRA reporting purposes: immediate or acute health hazard, delayed or chronic health hazard, fire hazard, sudden release of pressure hazard, and reactivity hazard. Section 311 requires a onetime report of chemicals with SDSs/MSDSs (either the SDSs/MSDSs themselves or a list of chemicals), while Section 312 requires annual reports. At present, all states require so-called “Tier II reporting,” using EPA’s national format (EPA prefers online reporting using its “Tier2 Submit” software) or a state format that requires at least equivalent information.

Tier Two forms include the following information:

• Chemical or common name of each hazardous chemical (as listed on the SDS/MSDS) and the Chemical Abstracts Service (CAS) number;

• Estimated maximum amount, in weight ranges, of each chemical at the facility during the preceding year;

• Estimated average daily amount, in weight ranges, of each chemical;

• Description of the manner of storage of each hazardous chemical (e.g., the type of container, whether it is under pressure, and its temperature);

• Location of each chemical; and

• Indication whether any information is to be withheld from the public as a trade secret.

The following are exempt from reporting:

• Any food, food additive, color additive, drug, or cosmetic regulated by the US Food and Drug Administration (FDA);

• Any hazardous chemical in solid form in a manufactured product that under normal conditions does not expose the user of the product to that chemical;

• Any hazardous chemical used for personal, family, or household purposes, or packaged in the same form as a product distributed to and used by the general public (packaging, not use, triggers this exemption);

• Any hazardous chemical used in a research lab, hospital, or other medical facility under direct supervision of a technically qualified individual; and

• Any hazardous chemical used in normal agricultural operations, and any fertilizer sold by a retailer to the ultimate customer.

Inventory reports are generally due by March 1 of each year, although some state and local agencies have different deadlines. Businesses should verify the applicable deadline with the SERC, LEPC, or local fire department. The facility must  also disclose if it is subject to Section 302 and/or federal Accidental Release Prevention requirements. EPA provides “Tier2 Submit” software to use for electronic reporting.

Reporting Annual Toxic Chemical Releases

As the fourth set of EPCRA requirements, Section 313 requires selected facilities to file toxic chemical release inventory reports with EPA and their state, on one of two forms (Form R or Form A). EPA refers to this as the Toxics Release Inventory (TRI) program. Reports estimating releases of listed toxic chemicals are due each July 1st covering the preceding calendar year. EPA provides “TRI-Made Easy” (“TRI-ME”) software, which can be downloaded from EPA’s website and used to perform calculations and manage data, and to make electronic filings.

Determining applicability

Applicability of TRI reporting depends on each facility’s industry sector, number of employees, and total annual use of listed chemicals (not on maximum quantity present).

Number of employees. Section 313 only applies to facilities with 10 or more full-time employees, or equivalent part-time employees. Any facility where employees work a total of 20,000 hours in a year meets this test.

Business sector. Section 313 only applies to facilities in the following specified business sectors, which represent those that consistently have the largest quantities of TRI-listed chemicals:

• Any facility in standard industrial classification (SIC) Codes 20 – 39 or equivalent North American Industry Classification System (NAICS) sector;

• Any federal facility;

• Any facility in the following additional industry sectors:

    – Metal Mining (except iron ores, metal mining services, and uranium-radium-vanadium ores);

    – Coal Mining (except coal mining services);

    – Electric Utilities (coal- and oil-fired generating plants, electric services, electric and other services combined);

    – Commercial Hazardous Waste Treatment (facilities subject to Resource Conservation and Recovery Act (RCRA) permits; discussed in Volume III of these eBooks);

    – Chemical and Allied Products, Wholesale;

    – Petroleum Bulk Terminals and Plants; and Solvent Recovery Systems (limited to those engaged in solvent recovery on a contract or fee basis).

Toxic Chemicals handled. EPA’s TRI list contains over 600 chemicals and chemical “families.” EPA has also promulgated a second list identifying persistent, bioaccumulative and toxic (PBT) chemicals of special concern, which are subject to much lower threshold reporting quantities and are ineligible for certain exemptions. Filing thresholds are the following:

• Form R (see below) for each TRI chemical use exceeding either of the following:

    – 25,000 lb of chemicals manufactured or processed at a facility during a calendar year;

    – 10,000 lb of chemicals otherwise used at a facility during a calendar year.

• Form R for each PBT chemical with annual usage exceeding specified quantities (from 0.1 grams to 100 pounds)

• Form A (see below) instead of Form R if both of the following apply:

    – no more than 1,000,000 pounds in the year;

and

    – no more than 500 pounds are actually released to the environment (including through onsite or offsite disposal).

Facilities are not required to calculate or report quantities of toxic or PBT chemicals that meet any of the following descriptions:

• Exist in concentrations less than 1% of a mixture or less than 0.1% of a mixture when the chemical is a carcinogen listed by the National Toxicology Program, the International Agency for Research on Cancer (IARC), or OSHA;

• Are structural components of the facility;

• Are in food, drugs, cosmetics, or other items for personal use;

• Are used in motor vehicle maintenance;

• Exist as solids in manufactured items and do not release toxic chemicals under normal conditions of use;

• Are used in process water and noncontact cooling water drawn from the environment or municipal sources;

• Are in intake air used either as compressed air or as part of combustion; and

• Are used in a research lab, hospital, or other medical facility under direct supervision of a technically qualified individual.

Reports using Form R

Form R is a multi-page document that requires the following information:

• Facility’s name, location, and principal business;

• Certification by the owner, operator, or “senior management official” of the truth and completeness of information and the reasonableness of assumptions;

• For each listed toxic chemical (unless claiming identity is a trade secret):

    – Whether the chemical is manufactured, processed, or otherwise used;

    – Chemical’s CAS number, name, or category;

    – Estimate of the maximum amount (in weight ranges) of the chemical onsite at any time during the preceding calendar year;

    – Estimate of the total amount of the chemical released onsite during the year, including both accidental releases and routine emissions;

    – Transfers of the chemical in wastes to offsite locations;

    – Onsite waste treatment methods and their efficiency;

    – Onsite energy recovery processes;

    – Onsite recycling processes; and

    – Source reduction activities.

A separate Form R is filed for each TRI chemical (including PBTs) that meets the applicable reporting threshold.

Reports using Form A

Form A is a shorter multi-page document that requires the following information:

• Trade secret information;

• Certification by the owner/operator or senior management official;

• Facility identification (ID) under applicable environmental statutes; Parent company information; and

• Chemical identification information (CAS number, toxic chemical or chemical category name).

A separate Form A is also required for each chemical reported using this alternative.

Additional state reporting requirements

Forms R and A are filed with EPA’s Headquarters. States can require facilities to send them copies, and a few also require reporting of additional information. Facilities should verify whether any of these additional requirements apply (e.g., Massachusetts).

FIRE AND BUILDING CODES

Local codes govern building and fire safety in most states. These codes require that building construction and operation incorporate design features that address potential hazards – including “hazardous materials” that present physical or health hazards.

Most state and local codes are based on model codes published by the International Code Council (ICC), which is a nonprofit organization established by code enforcement officials to replace disparate state and multistate codes with a single uniform set. ICC codes include the International Building Code (IBC), International Fire Code (IFC), and complementary specialized codes such as electrical, mechanical, and plumbing. The international codes cross-reference one another extensively.

State and local governments typically review and adopt specific editions of ICC codes as their own, often incorporating variations or additional provisions. For example, the 2019 edition of the California Building Code is based on the 2018 IBC and IFC, with additional provisions that include hazardous materials and seismic hazards. Because each individual building project must comply with the then-applicable requirements of the local codes, including any local variations from the ICC’s model codes, you must evaluate each project separately. You cannot rely on previous projects, or even on contemporaneous projects in other jurisdictions.

Building Codes

To determine which requirements apply to a particular building, officials first review what activities will be underway (including the use of hazardous materials) to determine the “occupancy” type under building code provisions, then apply pertinent provisions to develop site-specific requirements. Requirements related to hazardous materials generally are based on the maximum quantity of a chemical or class of chemical that will be present in the occupancy, and how it will be stored and/or handled.

IBC is divided into 35 chapters, some of which provide alternative versions of similar requirements. It is also accompanied by 14 detailed appendices. Chapters may be organized to address topics of concern within most facilities, particular conditions, or administrative details.

The heart of the IBC approach is the occupancy, which it defines as “the purpose for which a building, structure, or other improvement to property, or a part thereof, is used or intended to be used.” IBC describes 10 occupancy types, including A (Assembly), B (Business), E (Educational), F (Factory and Industrial), H (High Hazard), I (Institutional), M (Mercantile), R (Residential), S (Storage) and U (Utility and Miscellaneous). For each occupancy type, building codes prescribe materials that can be used in construction, numbers and types of access and exits, whether special ventilation and/or fume hoods are required, the nature and type of fire prevention and suppression equipment, etc.

Storage and use of hazardous materials are considered when occupancies are categorized – hazardous materials are defined using the IFC hazard classes identified below. Building occupants notify the local building official about which classes of hazardous material(s) will be present, maximum quantities that will be present, and whether the hazardous materials will be stored, used in closed system, and/or used in an open system. If the quantities and uses are sufficiently hazardous, any facility may be placed in the appropriate “Group H” (High Hazard) occupancy, which may preclude some other uses considered inappropriate for hazardous locations.

Application of building requirements is intended to be a logical, methodical process. These encompass the following series of steps:

• Classify building:

    – Occupancy classification(s) within the building.

    – Type of construction.

    – Location on property (setbacks and proximity to other occupancies).

    – Allowable floor area (which varies with occupancy and type of construction).

    – Height and number of stories.

• Review building for conformity with requirements applicable to its occupancy type(s).

• Review building for conformity to construction requirements.

• Review building for applicability of and conformity to other special requirements for construction materials or fixtures such as elevators.

• Review building for conformity with structural engineering requirements.

When an occupancy contains multiple hazards, all must be addressed. Each building must be constructed in compliance with building code provisions applicable when it is first constructed, but generally need not be retrofitted to incorporate subsequent code amendments unless or until it undergoes major additions, alterations, or repairs. Therefore, existing buildings rarely meet the latest standards. However, local building officials can order upgrades whenever they find the facility is “dangerous to life,” even without a triggering construction project.

Fire Codes

Local fire agencies (typically city fire departments and county or regional fire districts) administer local fire codes based on the IFC, through inspection and permit programs. Local jurisdictions coordinate building and fire code administration … although the degree of effective coordination varies. Typically, fire code review is undertaken in cooperation with building officials when a facility is being designed and built, or when the occupant or its activities change.

Compliance is overseen on an ongoing basis through inspections and permits. Most code requirements operate only prospectively, so that conditions legally in existence when code amendments are adopted need not be upgraded. Upgrades are required if the local fire official finds that existing conditions present a “distinct hazard to life or property,” or may be required by the fire and building officials as part of a building modification project.

The IFC is organized into 53 chapters, with subordinate sections. Chapters typically cover one or more of the following aspects:

• Types of facilities (underground tanks, semiconductor fabrication lines, etc.)

• Types of material present (such as explosives or flammable liquids)

• How the materials are used (storage, use in enclosed processes, use in open containers, etc.)

• Classes of fire prevention equipment (sprinklers, storage cabinets, etc.).

Within this organizational structure, several elements regulate different aspects of the storage, handling, and use of hazardous materials. Hazardous materials are defined very broadly as “chemicals or substances which are physical hazards or health hazards as defined and classified in this chapter, whether the materials are in usable or waste condition.” Beginning with the 2012 edition, the IFC codifies requirements for hazardous materials in Chapters 50 – 67 (in earlier editions these requirements appeared in Chapters 27 – 44, which have been deleted and reserved). Chapter 50 provides “general provisions” regarding all hazardous materials, and chapters 51 through 67 provide additional details regarding different classes of hazardous materials (compressed gases, flammable and combustible liquids, etc.). IFC hazard classes cover physical and health hazards. Physical hazards are categorized in the following hazard classes:

• Explosives and blasting agents

• Combustible liquids

• Flammable solids, liquids and gases

• Organic peroxide solids or liquids

• Oxidizer, solids or liquids

• Oxidizing gases

• Pyrophoric solids, liquids or gases

• Unstable (reactive) solids, liquids or gases

• Water-reactive materials solids or liquids

• Cryogenic fluids

Health hazards consist of the following:

• Highly toxic and toxic materials

• Corrosive materials

Each facility that handles or stores hazardous materials may be required by its local fire agency to obtain a permit (determined locally based on type and quantities of materials) and may be required to submit a Hazardous Materials Management Plan (HMM P) and a Hazardous Materials Inventory Statement (HMIS):

Each HMMP must include the following information:

• General site plan, drawn to scale, showing hazardous materials storage areas

• HMIS

• Building floor plans

• Descriptions of hazardous materials handling

• Chemical compatibility and safety precaution

• Monitoring of each storage facility

• Security precautions

• Labeling of storage areas

• Inspection and record keeping

• Employee safety training

• Onsite emergency equipment.

Each HMIS must list hazardous chemicals and the following information for each:

• Hazard class.

• Standard identification number.

• Chemical and common name (for individual chemicals or constituents of mixtures).

• Manufacturer.

• Maximum quantity onsite at any time during the reporting period (typically annual).

HMMP and HMIS have lower thresholds and more extensive requirements than the EPCRA provisions discussed above.

STP SELF-ASSESSMENT CHECKLISTS

AUTHOR BIO

The professional experience of Jon F. Elliott, BSE, MPP, JD, includes:

  • Practicing attorney in California.
  • Compliance consultant and legal advisor (since 1985), specializing in projects that address multiple legal frameworks simultaneously.

 
Jon Elliott has made a major contribution to the Specialty Technical Publishers (STP) product range for over 30 years. Examples include:

 
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Berkeley Boalt Hall School of Law–1981), he holds a Master of Public Policy (Goldman School of Public Policy, UC Berkeley–1980) and a Bachelor of Science in Mechanical Engineering (Princeton University–1977).

Lorraine O’Donovan is a Marketing Specialist for Specialty Technical Publishers.

[Editors' Note: Republished with permission. Copyright © 2018 Specialty Technical Publishers. All Rights Reserved. This publication does not constitute legal, accounting or other professional advice. STP Specialty Technical Publishers and its authors make no warranties, whether express or implied, regarding the accuracy of any information or materials contained herein or the results of any course of action described herein, and STP and its authors expressly and specifically disclaim the implied warranties of merchantability and fitness for a particular purpose.]

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January 25, 2019 @ 09:00 AM EST Manufacturing Environment, Health & Safety

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