18 ELR 10007 | Environmental Law Reporter | copyright © 1988 | All rights reserved

The Emergency Planning and Community Right-to-Know Act of 1986: An Explanation of Title III of SARA

Mr. Hoffman, an associate with the Harrisburg, Pennsylvania, office of the law firm of Duane, Morris & Heckscher, is a graduate of the National Law Center of George Washington University and Northwestern University. Mr. Burcat, an associate with the Harrisburg, Pennsylvania, law firm of Rhoads & Sinon, is a graduate of Vermont Law School and The Pennsylvania State University.

[18 ELR 10009]

I. Introduction

Traditionally, emergency planning and the regulation of public nuisances have been functions of local and state governments. The role of the federal government has been limited to planning for national and regional calamities, in areas other than hazardous chemical accidents, and the direct regulation of industry. The federal government has also been involved in responding to such calamities, including chemical accidents and post-accident cleanup. The Emergency Planning and Community Right-to-Know Act (EPCRA),¹ enacted on October 17, 1986, is a significant first step toward a major federal role in areas previously regulated by state and local governments.

EPCRA represents a step in the evolution of federal law regarding the control of toxic substances and planning for emergencies caused by releases of those substances. In the 1970s, the federal government addressed the regulation of pesticides,² the orderly handling and disposal of solid and hazardous substances,³ and regulation of the production of toxic substances.⁴ In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which specifically addressed emergency situations created by releases and threatened releases of hazardous substances.⁵ CERCLA also addressed the closure of abandoned hazardous waste facilities and the effects of those facilities on local communities.

In 1970, Congress enacted the Occupational Safety and Health Act (OSH Act).⁶ The purpose of the OSH Act was to ensure safe and healthful working conditions for employees. In 1983, the Occupational Safety and Health Administration (OSHA) promulgated new regulations requiring employers to transmit information regarding hazardous chemicals to their employees.⁷ OSHA's desire was to reduce the incidence of chemical-related occupational illnesses and injuries in the workplace. As a part of the 1983 regulations, OSHA required employers in the manufacturing sector to label containers of hazardous chemicals in the workplace, prepare and transmit to employees material safety data sheets (MSDSs) containing detailed information concerning the chemicals to which workers could become exposed, and conduct education and training programs for employees to raise their level of awareness regarding the hazards to which they were potentially exposed.

In 1986, Congress enacted the Superfund Amendments and Reauthorization Act (SARA).⁸ Title I of SARA reenforced the liability and emergency response provisions of CERCLA. EPCRA, which was enacted as Title III of SARA, is a wholly separate act from CERCLA.⁹

As its name implies, EPCRA has two themes: emergency planning and community right-to-know. The emergency planning aspect requires local communities to prepare plans for dealing with emergencies relating to hazardous materials. The community right-to-know aspect creates new rights for members of the public and local governments to obtain information concerning potential threats in their neighborhoods concerning hazardous substances. EPCRA requires industry to divulge proprietary information concerning substances utilized at their facilities and creates a bureaucratic infrastructure by which that information may be disseminated. EPCRA does not direct members of the community or local governments to any particular methods of emergency planning; rather, it provides the tools for local governments and members of the community to make their own decisions regarding hazardous materials in their communities.

In and of itself, EPCRA will not prevent chemical spills or harm to human life or the environment. However, EPCRA provides state and local decisionmakers with both the knowledge and the means to mitigate the impact of such occurrences. Essentially, all EPCRA does is shift information from business and other facilities to governments and individuals.

This article analyzes each section of EPCRA, setting forth the statutory obligations and rights created pursuant to EPCRA. It also discusses the Environmental Protection Agency's (EPA's) regulatory implementation of the Act. The authors conclude with a critique of EPCRA.

II. Section-By-Section Commentary

Subchapter I — Emergency Planning and Notification

Sections 301 through 305 of EPCRA establish the state and local emergency planning entities, define a list of extremely hazardous substances for which emergency planning and release notification must be made, and define those facilities that are covered by EPCRA. These sections mandate emergency planning requirements and deadlines that must be met by state and local entities.

Section 301 — Establishment of state commissions, planning districts, and local planning committees

Section 301 of EPCRA establishes two planning levels within each state — state emergency response commissions and emergency planning districts.¹⁰ The governor of each state was required to appoint a state emergency response commission by April 17, 1987.¹¹

The state emergency response commissions are composed [18 ELR 10010] of individuals with technical expertise in emergency response. Among the duties of the commissions are the designation of emergency planning districts and appointment of local emergency planning committees for each emergency planning district.¹² The commission must supervise and coordinate the activities of the local committees. In addition, the commission must establish procedures for receiving and processing requests from the public for information requested under EPCRA.

The commissions should have designated emergency planning districts by July 17, 1987.¹³ The purpose of these districts is to facilitate preparation and implementation of emergency plans.¹⁴ Existing political subdivisions or multi-jurisdictional planning organizations may be designated by the commission as districts "[w]here appropriate."¹⁵ These districts may be revised by the commission as it deems appropriate.¹⁶

By August 17, 1987, the commissions should have appointed members to local emergency planning committees for each district.¹⁷ EPCRA requires that each committee include, "at a minimum," representatives from the following groups or organizations: elected state and local officials; law enforcement, civil defense, fire-fighting, first aid, health, local environmental, hospital and transportation personnel; broadcast and print media; community groups; and owners and operators of facilities subject to EPCRA.¹⁸ If an "interested person" is dissatisfied with the composition of the committee, he or she may petition the state emergency response commission to modify the membership of the local committee.¹⁹ The state commission may revise its appointments to the local committees as it deems appropriate.²⁰

Each local committee must establish its own procedural rules,²¹ including provisions for public notification of committee activities, public meetings to discuss emergency plans, public comments, responses to the comments by the committee, and distribution of the plan.²² In addition, the local committee must establish its own rules for receiving and processing requests from the public for information.

Section 302 — Substances and facilities covered and notification

Section 302²³ establishes that EPCRA applies to the list of extremely hazardous substances published by EPA in Appendix A of the Chemical Emergency Preparedness Program (CEPP) Interim Guidance. The list of chemicals contains threshold planning quantities (TPQs), that is, quantities of the chemical that will trigger EPCRA's emergency planning and notification requirements. Any facility that has one or more of the chemicals on the list in quantities in excess of the TPQ is required to have so notified the state emergency response commission by May 17, 1987.²⁴ EPA requires the owner or operator of a facility to determine the total amount of a regulated substance at the facility regardless of location, number of containers, or method of storage.²⁵ The amount of extremely hazardous substance present in mixtures or solutions in excess of one percent must be included in the determination.

EPCRA authorizes EPA to revise the initial list and mandates that various factors be considered before including or excluding any substance from the list.²⁶ These factors include the toxicity, reactivity, volatility, dispersability, combustibility, and flammability of a substance.²⁷ EPA is required to consider the short- and long-term health effects that may result from a short-term exposure to the substance.²⁸ In making its initial determinations for inclusion in the list, EPA considered the acute lethality of substances based upon animal studies from the most sensitive mammalian species.²⁹ Revisions to the list will be based upon short- and long-term health effects.³⁰

All facilities containing substances in excess of the threshold planning requirements must comply with the reporting requirements.³¹ A facility is defined to include all buildings, equipment, structures, and other stationary items located on a single site or on contiguous or adjacent sites which are owned or operated by the same person.³² For the purposes of EPCRA § 304,³³ (relating to emergency notification) the term "facility" includes motor vehicles.³⁴ Facilities do not include those owned or operated by the United States.³⁵ This is because the term "person" under EPCRA, while including individuals, corporations, states, and municipalities, does not include the United States. Thus, the United States is exempt from complying with EPCRA.³⁶

For planning purposes, a governor or state commission may designate additional facilities to be subject to the requirements of EPCRA, after public notice and an opportunity for comment.³⁷ Presumably, this designation is for those facilities that contain substances not in excess of threshold planning requirements. Since sites owned and operated by the United States are not facilities, by definition, a state could not designate a federal site as a [18 ELR 10011] designated facility. The state commission is required to notify EPA of all designated facilities.³⁸

As of May 17, 1987, all owners and operators of facilities subject to EPCRA were required to have notified the state commission that they were subject to the requirements of EPCRA.³⁹ Where a substance on the list of extremely hazardous substances becomes present at a facility in excess of the threshold planning quantity for that substance, or where new substances are added to the list, the owner or operator of the facility is required to so notify the state commission and local committee within 60 days of the acquisition of the substance or revision of the list.⁴⁰ EPA may order the owner or operator of a facility to comply with the emergency planning notification requirements.⁴¹ Failure to comply with an EPA order is enforceable in federal district court and civil penalties of up to $25,000 per day for failure to comply with the order may be obtained.⁴² In addition, failure to provide the notice will subject the owner or operator to suit by the state or local government compelling compliance.⁴³ The state commissions are required to notify EPA of all notifications received from facilities.⁴⁴

EPA Implementation. On November 17, 1986, EPA published the list of extremely hazardous substances.⁴⁵ The publication of this initial list contained little or no element of discretion as EPCRA mandated that the list be identical to the list of substances published in November of 1985 by EPA as part of the Chemical Emergency Preparedness Program Interim Guidance.⁴⁶ In the same notice, EPA also published its Interim Final Regulation establishing a threshold planning quantity for each of the 402 extremely hazardous substances on the list. The list also contained the reportable quantities (RQs) for each substance. A release of a substance equal to or in excess of the RQ requires a facility to comply with the reporting requirements under CERCLA § 103 and EPCRA § 304.

In setting a threshold planning quantity for each substance in an effort to forestall the implementation of the uniform two-pound planning quantity mandated statutorily⁴⁷ if a regulation was not published within 30 days after EPCRA was enacted, EPA examined several alternative approaches. These included retaining the two-pound quantity for all chemicals and ranking the chemicals solely on a toxicity index.

Ultimately, EPA concluded that the most useful approach would be to use an index that takes into account not only toxicity but the potential of a substance to become airborne, and the downwind dispersion of a chemical in an accidental release.⁴⁸ The rationale for taking into account factors other than toxicity arose out of EPA's belief that limited state and local resources should be focused on those substances that would potentially cause the greatest harm should an accidental release occur. Thus, EPA concluded that those substances most likely to cause serious problems, such as extremely toxic gases, solids likely to be readily dispersed, or highly volatile liquids, should be assigned lower threshold planning quantities than other substances that, although highly toxic, are less likely to be released into the air and, therefore, pose a reduced threat to nearby communities.

Based on this approach, EPA's Interim Final Regulation of November 17, 1986, contained threshold planning quantities ranging from "any" for nickel carbonyl to two pounds for a number of substances including paraquat and methyl vinyl ketone to 10,000 pounds for the more benign of the extremely hazardous substances.⁴⁹

Also, on November 17, 1986, EPA published a proposal initiating a rulemaking to revise the Interim Final Regulation published the same day establishing the list of extremely hazardous substances and their respective threshold planning quantities.⁵⁰ That proposal also contained revisions to the list based on corrections to the toxicity data base, the development of new data or modifications to the criteria. Specifically, EPA proposed the deletion of 40 chemicals that no longer met the original criteria for inclusion as part of the CEPP Interim Guidance according to newly available data. In addition, EPA proposed five substances for addition to the list of extremely hazardous substances.⁵¹

On April 22, 1987, less than a month before facilities were required to begin reporting the presence of listed substances in quantities above the threshold planning quantities,⁵² EPA issued a final rule containing a revised list of extremely hazardous substances, their threshold planning quantities and RQs.⁵³

The final rule added four of the five chemicals suggested for addition in the proposed rule⁵⁴ but EPA decided to delete none of the 40 chemicals proposed for removal from the list. Despite the fact that the 40 chemicals no longer met the acute lethality criteria, EPA decided to keep them on the list until EPA could complete studies of long-term health effects that would result from short-term exposure to the chemical.⁵⁵

In the preamble to the final rule, EPA revealed its intent to develop additional toxicity criteria for both acute nonlethal and chronic effects of short-term exposure.⁵⁶ Until those criteria are available, it appears that the agency will err on the side of retaining substances on the list even if new data suggest listed substances are not as lethal as once believed.

[18 ELR 10012]

EPA also adjusted the threshold planning quantities in the final rule and changed several categories.⁵⁷ The "any amount" category was eliminated and a new one-pound category was added for substances considered to represent the highest potential hazard. The two-pound category was also eliminated with several chemicals reassigned to the one-pound category and the new ten-pound category. As a result of these category changes and comments received from the public, in its final rule EPA moved 36 chemicals to lower categories and shifted 12 to higher threshold planning quantity values.⁵⁸

The treatment of extremely hazardous substances as part of mixtures was subjected to substantial comment. The final rule reflects EPA's decision to establish a 1 percent limit on the amount of extremely hazardous substances in mixtures, solutions, or formulations for determining quantities applicable to threshold planning quantities. Thus, containers or storage vessels holding mixtures or solutions containing less than 1 percent of an extremely hazardous substance may be ignored in determining the quantity of the listed substance for reporting purposes. However, if the percentage in the mixture of the listed substances is greater than 1 percent, the precise weight percent must be multiplied by the mass, in pounds, in the container or vessel to determine the actual quantity of the extremely hazardous substance for emergency planning purposes.⁵⁹ The final rule also clarifies that alloys, amalgams, or polymers should not be considered mixtures for the purpose of the 1 percent rule since they exhibit properties different from that of their components. Only if the specific alloy or amalgam itself is a listed substance need it be taken into account in determining whether the threshold planning quantity has been reached.⁶⁰

In the final rule, EPA reconciled an inconsistency in the proposed regulations in which a number of substances on the extremely hazardous substances list had RQ levels under CERCLA that exceeded the threshold planning quantity values for particular substances.⁶¹ This would yield the anomalous result in which a facility could have a quantity of a listed substance sufficient to require emergency planning but not enough to require emergency notification under the RQ reporting rules even if the entire quantity at the facility was released. These inconsistencies are to be resolved in a separate rulemaking under CERCLA § 102 that will lower the RQ values of several chemicals. To accomplish this, EPA has also reassigned threshold planning quantity values, revised the one-pound statutory RQs for the extremely hazardous substances, and is planning a designation of additional extremely hazardous substances as CERCLA hazardous substances under § 102.

Listed extremely hazardous substances that are in solid form have received special treatment in EPA's final rule. Based on comments that the proposed threshold planning quantities were inappropriate for nonpowdered, non-reactive solids since they were not likely to become airborne, EPA has decided to subject solids to either of two threshold planning quantities, depending on the nature of the solid. The lower of the two applicable threshold planning quantities applies if the solid exists in powdered form and has a particle size less than 100 microns, or is handled in solution or in molten form, or has a National Fire Protection Association rating of 2, 3, or 4 for reactivity. If the substance is a solid but does not meet any of the criteria, the upper threshold planning quantity as shown in Appendices A and B to the regulation applies.⁶²

Section 303 — Comprehensive emergency response plans

Section 303⁶³ requires each local emergency planning committee to complete an emergency response plan by October 17, 1988.⁶⁴ The plans are required to contain, at a minimum, provisions regarding each of the following:

(1) Identification of facilities subject to the requirements of this subtitle that are within the emergency planning district, identification of routes likely to be used for the transportation of substances on the list of extremely hazardous substances referred to in section 302(a), and identification of additional facilities contributing or subjected to additional risk due to their proximity to facilities subject to the requirements of this subtitle, such as hospitals or natural gas facilities.

(2) Methods and procedures to be followed by facility owners and operators and local emergency and medical personnel to respond to any release of such substances.

(3) Designation of a community emergency coordinator and facility emergency coordinators, who shall make determinations necessary to implement the plan.

(4) Procedures providing reliable, effective, and timely notification by the facility emergency coordinators and the community emergency coordinator to persons designated in the emergency plan, and to the public, that a release has occurred (consistent with the emergency notification requirements of section 304).

(5) Methods for determining the occurrence of a release, and the area or population likely to be affected by such release.

(6) A description of emergency equipment and facilities in the community and at each facility in the community subject to the requirements of this subtitle, and an identification of the persons responsible for such equipment and facilities.

(7) Evacuation plans, including provisions for a precautionary evacuation and alternative traffic routes.

(8) Training programs, including schedules for training of local emergency response and medical personnel.

(9) Methods and schedules for exercising the emergency plan.⁶⁵

Section 303(d) mandates that by September 17, 1987, the owner or operator of a facility is required to have notified the local committee, or, if there is no committee, the governor, of a facility emergency coordinator.⁶⁶ The [18 ELR 10013] owner or operator is required to notify the committee of any "relevant changes" occurring at a facility as they occur or are expected to occur.⁶⁷ Upon request of the committee, the owner or operator of a facility must provide information necessary for developing and implementing the emergency plan.⁶⁸ The owner or operator may withhold information regarding the identity of particular substances as "trade secrets" provided the owner or operator meets all of the requirements of EPCRA § 322.⁶⁹ EPA may issue orders to enforce compliance with EPCRA § 303(d).⁷⁰ Failure to comply with the order is enforceable in federal district court and will subject the violator to civil penalties of up to $25,000 per day. Also, the state commission or local committee may file suit to compel compliance with § 303(d).⁷¹

The emergency response plans must be reviewed by the state emergency response commission.⁷² The commission must coordinate the plans of all of the districts within a state. EPA is required to prepare guidance documents and may review and comment on the plans.⁷³

Section 304 — Emergency notification

Emergency notification is an essential element of the emergency planning section of EPCRA.⁷⁴ Under § 304, releases⁷⁵ of substances are broken into four categories: (1) releases of substances appearing on the extremely hazardous substance list and requiring CERCLA notices; (2) releases of substances that appear on the extremely hazardous substance list and not requiring CERCLA notice; (3) releases of substances not appearing on the extremely hazardous substance list from a facility at which a hazardous chemical⁷⁶ is produced, used, or stored and where such release requires notification under CERCLA § 103(a) and where the substance is one for which an RQ has been established under CERCLA § 102(a); and (4) releases of substances not appearing on the extremely hazardous substance list from a facility at which a hazardous chemical is produced, used, or stored, and where such release requires notification under CERCLA § 103(a) but where no reportable quantity has been established under CERCLA.⁷⁷

With minor exceptions, all of the aforementioned releases require § 304(b)⁷⁸ notification. A significant exception is that the notification provision "does not apply to any release which results in exposure to persons solely within the site or sites on which the facility is located."⁷⁹

The notice must be communicated "immediately after the release" by the owner or operator of the facility to the community emergency coordinator for the local emergency planning committees likely to be affected by the release and to the state emergency planning commission.⁸⁰ When a substance is released during transportation, or during storage incident to transportation, the notice requirements "shall be satisfied by dialing 911 or, in the absence of a 911 emergency telephone number, calling the operator."⁸¹

The notice under § 304 is required to contain the following, if known at the time of the notice:

(A) The chemical name or identity of any substance involved in the release.

(B) An indication of whether the substance is on the list referred to in section 302(a).

(C) An estimate of the quantity of any such substance that was released into the environment.

(D) The time and duration of the release.

(E) The medium or media into which the release occurred.

(F) Any known or anticipated acute or chronic health risks associated with the emergency and, where appropriate, advice regarding medical attention necessary for exposed individuals.

(G) Proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordinator pursuant to the emergency plan).

(H) The name and telephone number of the person or persons to be contacted for further information.⁸²

Following the release, the owner or operator must provide a written follow-up emergency notice, setting forth the aforementioned information.⁸³ The notice is to be up-dated with additional information, including actions taken to respond to and contain the release, any known or anticipated health risks resulting from the release, and advice regarding medical attention necessary for those individuals who have been exposed to the substance.⁸⁴

EPCRA imposes severe civil and criminal penalties for failure to fully comply with the notification requirements.⁸⁵ Civil penalties of up to $25,000 per day may be assessed by EPA. A knowing and willful failure to comply with the notification requirements will subject the violator to criminal penalties of up to $25,000 and two years in prison.⁸⁶ Failure to provide the written follow-up notice will also [18 ELR 10014] subject the violator to a citizen suit.⁸⁷ Consequently, it would be most prudent for an owner or operator to comply with the notification requirements in all but the most obvious cases.

EPA Implementation. The final rule issued April 22, 1987, codifies the EPCRA emergency release notification procedures. The general rule is that any facility at which a hazardous chemical is produced, used, or stored must report the release of a reportable quantity of any listed extremely hazardous substance or CERCLA hazardous substance to the local emergency planning committee of any area likely to be affected by the release and the appropriate state emergency response commission.⁸⁸

Various statutory exceptions to these reporting requirements are set out in the final rule. They include any release resulting in exposure to persons solely within the boundaries of the facility; a "federally permitted release" according to CERCLA § 101(10); a "continuous" release pursuant to CERCLA § 103(f); and any release exempt from CERCLA § 103(a) reporting pursuant to CERCLA § 101(22).⁸⁹

While the final rule echoes the statutory requirement that notification be "immediate,"⁹⁰ without any accompanying interpretation in the text, EPA observes in the preamble to the rule that the statutory and regulatory terminology implies that the duty to notify arises "immediately after the releaser becomes aware" of the existence of a release. EPA added an objective aspect to this interpretation of "immediate" by noting that "if the facility owner/operator should have known of the release, then the fact that he or she was unaware of the release will not relieve the owner/operator from the duty to provide release notification."⁹¹ While not made a part of the text of the regulations, this preamble discussion by EPA provides insight into the anticipated agency enforcement policies in which the excuse for failure to notify "immediately" after release for lack of knowledge will only be recognized if it is reasonable under the circumstances.

The final rule restates precisely the contents of the notice and the "follow-up emergency notice" as specified in EPCRA § 304(b) and (c).⁹²

Section 305 — Emergency training and review of emergency systems

Section 305 of EPCRA authorizes the federal government to provide training and educational programs for federal, state, and local officials.⁹³ EPCRA authorizes an appropriation to Federal Emergency Management Agency of $5,000,000 per year for 1987 through 1990 for grants to state and local governments and universities to improve emergency planning capabilities.⁹⁴ EPA is required to review emergency systems and issue a final report to Congress no later than April 17, 1988.⁹⁵

Subchapter II — Reporting Requirements

Sections 311 through 313 of EPCRA⁹⁶ provide special requirements for the filing of various forms by the owners and operators of facilities. These forms provide notice that is reasonably accessible to the public. It is sections 311 through 313 of EPCRA that form the right-to-know component of the act.

Section 311 — Material safety data sheets

Section 311⁹⁷ requires that the owners or operators of those facilities that are required to prepare or have available an MSDS for a hazardous chemical under the OSH Act must submit either an MSDS for each chemical or a list of chemicals.⁹⁸ The MSDS or list must be submitted to the state emergency response commission, the local emergency planning committee, and the local fire department.⁹⁹ Failure to comply with this provision will subject the owner or operator to a citizen suit¹⁰⁰ or to a suit by a state or local government entity to compel compliance.¹⁰¹

Where an operator submits a list in lieu of the MSDS, the list must contain all of the hazardous chemicals for which an MSDS would be required under the OSH Act, the chemical name or the common name of each chemical as provided on the MSDS, and an identification of any hazardous component of each chemical.¹⁰² EPA may modify the categories of health and physical hazards as set forth under the OSH Act to provide additional information where a list is being filed.¹⁰³ Where a list has been submitted to a local committee, the local committee may require the owner or operator to submit the MSDS to the committee.¹⁰⁴ Any person may obtain an MSDS by making a request, pursuant to EPCRA § 324, to the local committee.¹⁰⁵ If the local committee does not have the MSDS, it must obtain it from the owner or operator of the facility and then forward it to the person making the request. Where an owner or operator fails to make information available under this section, any state or local government may institute suit in federal district court to compel compliance.¹⁰⁶

The initial MSDSs or lists must have been filed no later than October 17, 1987, or three months after the owner or operator is required to supply an MSDS under the OSH [18 ELR 10015] Act.¹⁰⁷ Revisions must be filed with the appropriate entities within three months of discovery of the new information by the owner or operator.

An owner or operator is permitted to withhold from the state commission or local committee the identity of any hazardous chemical as a "trade secret" so long as the substance is a trade secret and all of the requirements of EPCRA § 322 have been met.¹⁰⁸ Any violation of any provision of § 311 will subject the violator to a civil penalty assessment or action by EPA.¹⁰⁹ Penalties of up to $10,000 per day of violation may be assessed by EPA.

EPA Implementation. See discussion of EPA implementation under § 312.

Section 312 — Emergency and hazardous chemical inventory forms

A second set of forms that must be filed are the emergency and hazardous chemical inventory forms (inventory forms).¹¹⁰ These inventory forms will provide information on types of hazardous chemicals present at a facility, the amount, and the location of the hazardous chemicals.

Where an owner or operator of a facility is required to prepare or have available MSDS forms under the OSH Act, an inventory form must be filed with the state emergency response commission, the local emergency planning committee, and the local fire department.¹¹¹ Whenever an MSDS or list is required to be filed under EPCRA § 311, an inventory form must also be filed.¹¹² Inventory forms are divided into "tier I information" forms that must be provided in all instances,¹¹³ and "tier II information" forms that must be provided by an owner or operator upon the request of a state commission, local committee, or local fire department.¹¹⁴ Tier I information inventory forms must be submitted by the owner or operator of a facility on or before March 1, 1988, and annually thereafter.¹¹⁵ Inventory forms were required to have been published by EPA by January 17, 1987.¹¹⁶

EPCRA requires that owners and operators submit the following information to satisfy the tier I information inventory requirements:

(i) An estimate (in ranges) of the maximum amount of hazardous chemicals in each category present at the facility at any time during the preceding calendar year.

(ii) An estimate (in ranges) of the average daily amount of hazardous chemicals in each category present at the facility during the preceding calendar year.

(iii) The general location of hazardous chemicals in each category.¹¹⁷

EPA may require that owners and operators provide information on individual hazardous chemicals, rather than categories of chemicals.¹¹⁸ The owner or operator may withhold from the state commission and local committee the identities of chemicals it identifies as "trade secrets," so long as all of the requirements of EPCRA § 322 have been met.¹¹⁹

Tier II information may be requested by state commissions, local committees, and fire departments.¹²⁰ A state or local official acting in his or her official capacity may have access to tier II information by submitting a request to a state commission or local committee.¹²¹ Upon receipt of the request, the state commission or local committee shall request the tier II information from the owner or operator and then make that information available to the official.

Tier II information may also be obtained by the public.¹²² Where a person requests tier II information that is in the possession of a state commission or local committee, then that information must be made available to the inquirer.¹²³ If the commission or committee does not have the information, then it shall request the facility owner or operator for tier II information relating to a hazardous chemical which a facility has stored in an in excess of 10,000 pounds at any time during the preceding calendar year.¹²⁴ The information shall be made available to the inquirer in accordance with EPCRA § 324. The commission or committee may use its own discretion in providing tier II information where the information is not in its possession and where the facility has stored less than 10,000 pounds of the substance at the facility at any one time during the preceding calendar year.¹²⁵ The request must include the reason the inquirer has a need for the information. In all cases, the state commission or local committee must respond to the inquirer's request within 45 days.¹²⁶

EPCRA requires that owners and operators submit the following information to satisfy the tier II information inventory requirements:

(A) The chemical name or the common name of the chemical as provided on the MSDS.

(B) An estimate of the maximum amount of the hazardous chemical present at the facility at any time during the preceding calendar year.

[18 ELR 10016]

(C) An estimate of the average daily amount of the hazardous chemical present at the facility during the preceding calendar year.

(D) A brief description of the manner of storage of the hazardous chemical.

(E) The location at the facility of the hazardous chemical.

(F) An indication of whether the owner elects to withhold location information of a specific hazardous chemical from disclosure to the public.¹²⁷

Where an owner or operator has filed an inventory form, a fire department with jurisdiction over the facility may request, and shall be allowed access for, an on-site inspection of the facility.¹²⁸ The owner or operator shall provide the fire department with specific location information on hazardous chemicals at the facility.

Any violation of EPCRA § 312 will subject the violator to a civil penalty assessment by EPA of up to $25,000 per day of violation.¹²⁹ Any person may bring a citizen suit against any owner or operator for failure to provide the tier I information inventory form under § 312(a).¹³⁰ A state or local government may also bring suit for the same reason.¹³¹ A citizen suit may be brought against a state governor or state commission where there has been a failure to respond to a tier II information request under § 312(e)(3), so long as the suit is brought at least 120 days after the receipt of the original request.¹³² A state commission or local committee may commence a civil action against an owner or operator for failure to provide tier II information when requested.¹³³

EPA Implementation. On October 15, 1987, EPA published final regulations specifying the uniform format for emergency and hazardous chemical inventory forms under EPCRA § 312 and implementing the §§ 311 and 312 requirements that facilities submit MSDS and inventory forms to local and state officials.¹³⁴ According to the final rule, the initial submission of MSDS or an alternative list of hazardous chemicals was due on October 17, 1987, or 90 days after the facility is first required to prepare or have available an MSDS for hazardous chemicals pursuant to OSHA regulations, whichever date is later. The final rule also establishes March 1, 1988, as the due date for initial submission of the inventory form containing tier I information.¹³⁵

Section 311(b) of EPCRA provides the EPA with discretion to establish threshold quantities for hazardous chemicals below which no facility would be required to submit MSDS or tier information. EPA has selected a phase-in approach in order to balance the competing considerations of maximizing the submission of hazardous chemical information while minimizing the flood of paperwork that threatens the manageability of the data submitted. Thus, by October 17, 1987 (or three months after a facility first becomes subject to the MSDS submission requirement), a facility must submit an MSDS for all hazardous chemicals present at the facility in amounts equal to or greater than 10,000 pounds and for extremely hazardous substances present at the facility in amounts over 500 pounds (or 55 gallons), or its designated threshold planning quantity, whichever is less.¹³⁶

The next threshold level attaches on or before October 17, 1989 (or two years and three months after a facility first becomes subject to the MSDS reporting requirements). By that date, facilities must submit MSDSs for each hazardous chemical present at the facility in amounts between zero and 10,000 pounds.¹³⁷

While the proposed rule established a three-year phase-in of thresholds at 10,000, at 500, and at zero pounds, EPA has decided not to set a zero-pound threshold for the third and subsequent years in favor of further consideration and comment on the possibility of a nonzero permanent threshold such as 500 pounds.¹³⁸

Threshold levels that will trigger the submission of tier I information on the inventory form¹³⁹ are also subject to a phase-in approach: the first submission by March 1, 1988, is required for hazardous chemicals present during the preceding calendar year at amounts of 10,000 pounds or greater or, if an extremely hazardous substance, in amounts equal to or greater than 500 pounds (or 55 gallons) or the threshold planning quantity, whichever is less. The second year of tier I inventory reporting by March 1, 1989, remains at the same threshold level but for the third and subsequent years beginning on or before March 1990, the hazardous chemical threshold level drops to zero pounds while a substance on the list of extremely hazardous substances remains at 500 pounds or greater or the threshold planning quantity, whichever is less.¹⁴⁰

There is no threshold for submitting an MSDS or a tier II form in response to a request to do so.¹⁴¹ Thus, if such information is sought by a member of the public through the local committee, the information must be submitted even if the hazardous chemical present at the facility is below the threshold level for that year.

The final rule codifies the statutory requirement that the MSDS or the tier I information on the inventory form must be submitted to the local committee, the state commission, [18 ELR 10017] and the fire department with jurisdiction over the particular facility.¹⁴² In lieu of submitting an MSDS for each hazardous chemical, a facility may submit a list of hazardous chemicals for which the MSDS is required, grouped by hazard category,¹⁴³ containing the chemical or common name of each hazardous chemical and any hazardous component of each hazardous chemical. The alternative reporting options also permit the submission of a tier II form in lieu of tier I information.

The final rule clarifies the reporting of hazardous chemical mixtures. Specifically, facilities are provided with the option of either providingthe MSDS and/or inventory forms on each component in the mixture that is a hazardous chemical or on the entire mixture itself so long as reporting of the mixtures by the facility is consistent for both types of reporting.¹⁴⁴ Instructions are provided for calculating the quantity of the hazardous substance in the mixture if that method of reporting is chosen in which the weight percent beginning at 1 percent (or one tenth of a percent if a carcinogenic chemical) is multiplied by the mass of a mixture.¹⁴⁵

Section 313 — Toxic chemical release forms

Where toxic chemicals have been released into the environment, an owner or operator must complete a toxic chemical release form.¹⁴⁶ The reports, which are to be filed on an annual basis, cover releases from normal business operations, as opposed to abnormal emergency releases covered under EPCRA § 304.¹⁴⁷ The release forms are intended to provide information to the federal, state, and local governments and the public, including citizens of communities surrounding covered facilities.¹⁴⁸ Although the stated purpose of the forms is to provide information about releases of toxic chemicals into the environment, to assist research, and to aid in the development of regulations, these forms must be made generally available to the public for any purpose.¹⁴⁹

The substances covered under this section are so-called "toxic chemicals."¹⁵⁰ The initial list of toxic chemicals is the list printed in Committee Print Number 99-162 of the Senate Committee on Environment and Public Works, entitled "Toxic Chemicals Subject to Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986."¹⁵¹ Chemicals were chosen for the list of toxic chemicals and may be added to this list for the following reasons:

A. The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases.

B. The chemical is known to cause or can reasonably be anticipated to cause in humans —

(i) cancer or teratogenic effects, or

(ii) serious or irreversible —

(I) reproductive dysfunctions,

(II) neurological disorders,

(III) heritable genetic mutations, or

(IV) other chronic health effects.

C. The chemical is known to cause or can reasonably be anticipated to cause a significant adverse effect on the environment, because of —

(i) its toxicity,

(ii) its toxicity and persistence in the environment, or

(iii) its toxicity and tendency to bioaccumulate in the environment.¹⁵²

EPA may delete a chemical from the toxic chemical list if there is insufficient evidence to establish the above criteria.¹⁵³ Any person may petition EPA to add or delete a chemical on the basis of the above-stated criteria.¹⁵⁴ Within 180 days of receipt of the petition, EPA shall either initiate rulemaking to add or delete the chemical to or from the list or publish an explanation of its reasons for denying the petition.¹⁵⁵ In the event EPA fails to respond to the petition within 180 days, a citizen suit may be commenced against EPA for failure to respond to the petition.¹⁵⁶

The governor of a state may specially petition EPA to add or delete a chemical to or from the list.¹⁵⁷ A petition by the governor to delete a chemical will be treated the same as a citizen petition. Where the governor petitions EPA to add a chemical, the chemical will be added to the list within 180 days, unless EPA initiates its own rulemaking to add the chemical to the list or publishes an explanation of its reasons for believing the petition does not meet the requirements of § 313(d)(2) for adding a chemical to the list.¹⁵⁸

EPCRA establishes a reporting requirement, or threshold amount, of 10,000 pounds per year for toxic chemicals used at a facility.¹⁵⁹ With respect to toxic chemicals manufactured or processed at a facility, the threshold amount is 75,000 pounds per year through July 1, 1988; 50,000 pounds per year from July 2, 1988, through July 1, 1989; and 25,000 pounds per year from July 2, 1989, and thereafter.¹⁶⁰ EPA may establish threshold amounts [18 ELR 10018] that are different from those required by EPCRA, so long as the EPA-mandated amount results in a reporting of "a substantial majority of total releases of the chemical at all facilities" subject to the reporting requirements.¹⁶¹

Owners or operators that must comply with the requirements of filing toxic chemical release forms are those whose facilities have ten or more full-time employees and that are in Standard Industrial Classification (SIC) Codes 20 through 39¹⁶² and that manufactured,¹⁶³ processed,¹⁶⁴ or used a listed toxic chemical in excess of the threshold amounts during the calendar year for which a release form is required.¹⁶⁵ EPA is given limited authority to add or delete SIC Codes where those manufacturers utilize toxic chemicals in a manner more similar to those already included or more similar to those already excluded, respectively.¹⁶⁶ Additional particular facilities may be added by EPA on its own motion, or at the request of a governor.¹⁶⁷ EPA may add the facility if it determines it should be added on the basis of toxicity of the toxic chemical, proximity to other facilities that release the toxic chemical or to population centers, the history of releases of such chemical at such facility, or other appropriate factors.¹⁶⁸

As of June 1, 1987, EPA was to have published a uniform toxic chemical release form for facilities covered by § 313.¹⁶⁹ In the event EPA has failed to publish such a form, an owner or operator may submit the information by letter. A citizen suit may be brought to require EPA to publish such a form.¹⁷⁰ The form must:

(A) provide for the name and location of, and principal business activities at, the facility;

(B) include an appropriate certification, signed by a senior official with management responsibility for the person or persons completing the report, regarding the accuracy and completeness of the report; and

(C) provide for submission of each of the following items of information for each listed toxic chemical known to be present at the facility:

(i) Whether the toxic chemical at the facility is manufactured, processed, or otherwise used, and the general category or categories of use of the chemical.

(ii) An estimate of the maximum amounts (in ranges) of the toxic chemical present at the facility at any time during the preceding calendar year.

(iii) For each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such methods for that wastestream.

(iv) The annual quantity of the toxic chemical entering each environmental medium.¹⁷¹

EPCRA specifically provides that an owner or operator is to use existing, readily available data.¹⁷² EPCRA does not require "the monitoring or measurement of the quantities, concentration, or frequency of any toxic chemical released into the environment beyond the monitoring and measurement required under other provisions of law or regulation."¹⁷³

The release forms are to be filed annually,¹⁷⁴ unless EPA requires them less frequently.¹⁷⁵ The forms must be filed with EPA and with an official or officials to be designated by the governor of each state on or before July 1, 1988.¹⁷⁶ It should be noted that EPCRA does not require the forms to be filed with the state commission or local committee; however, a governor may designate those entities to be the recipient of the form. The forms are to be submitted on an annual basis starting on July 1, 1988. Following July 1, 1988, EPA may lengthen the reporting period. The owner or operator may withhold information regarding the identity of a particular substance as a "trade secret," provided he complies with all of the requirements of EPCRA § 322.¹⁷⁷ Failure to file the forms on time will subject the owner or operator to a citizen suit.¹⁷⁸

EPA is required to establish and maintain in a computer database a national toxic chemical inventory based on data submitted to EPA by owners and operators.¹⁷⁹ The database shall be accessible by computer telecommunication and other means to any person on a cost basis. If EPA fails to establish a computer database, a citizen suit may be brought against EPA to enforce this requirement.¹⁸⁰

The Comptroller General of the United States is required to report to Congress, not later than June 30, 1991, on the steps taken by EPA and the states to comply with this section.¹⁸¹ The Comptroller General is also required to identify and evaluate options for modifications to the requirements of § 313 to make the information collected more useful. EPA, in conjunction with the National Academy of Sciences, must undertake a study assessing information accumulated by EPA, waste-reduction efficiency of different facilities, the effectiveness of toxic chemical regulations promulgated under other laws, and the utility of the [18 ELR 10019] information gathered.¹⁸² EPA must report its findings to Congress no later than October 17, 1991.

As with other provisions of EPCRA, EPA may assess a civil penalty against any person (other than a governmental entity) that fails to comply with this section.¹⁸³ A civil penalty of up to $25,000 may be assessed for each violation.

EPA Implementation. On June 4, 1987, EPA published proposed rules implementing EPCRA's § 313 provisions governing the submission of information relating to the release of toxic chemicals. In order to be considered a "covered facility" subject to the toxic chemical reporting requirements, three criteria must be met: (a) the facility has at least ten full-time employees; (b) the facility is classified in SIC Codes 20-39 as in effect on January 1, 1987; and (c) a toxic chemical in an amount in excess of the applicable threshold quantity was manufactured, imported, processed, or otherwise used by the facility.¹⁸⁴

The proposed regulations codify the reporting thresholds in EPCRA § 313(f). No modifications to the threshold for specific toxic chemicals have been proposed in the regulation but EPA, under its authority to revise under EPCRA § 313(f)(2), has solicited comment on the subject of threshold modification.

Thus, the § 313 reporting requirements are triggered for facilities that manufacture, import, or process listed toxic chemicals¹⁸⁵ in excess of: 75,000 pounds in 1987; 50,000 pounds in 1988; and 25,000 pounds in 1989 and subsequent years. The reporting requirements are also triggered if 10,000 pounds or more of a listed chemical is "otherwise used" at a facility during a calendar year.¹⁸⁶

Definitions are provided in the proposed rule for the terms "manufacture" and "process," which generally track the statutory definitions but add additional explanation.¹⁸⁷ The term "otherwise used," which remained undefined in the statute, is defined broadly in the proposed rule as "any use of a toxic chemical that is not covered by the terms 'manufacture' or 'process' and includes use of a toxic chemical contained in a mixture or trade name product."¹⁸⁸

The proposed regulation imposes a strict five-year recordkeeping requirement following the submission of a report.¹⁸⁹ Included in the records to be retained are a copy of the toxic chemical report, and all supporting materials and documentation. The records must be maintained at the facility and be made available for inspection by EPA. Facility closure prior to the conclusion of the five-year retention period does not excuse the requirement. The records must be transferred to the owner or the operator of the facility or, if none, must be sent directly to EPA.¹⁹⁰

Despite the grant of authority under EPCRA,¹⁹¹ EPA has decided not to propose in its June 4, 1987, publication any modification of the requirements for facilities covered by adding or deleting SIC Codes. However, EPA did solicit public comment on this issue and may decide to cover additional industry segments when the final rule is promulgated.¹⁹²

On February 4, 1987, EPA published its policy on the submission of petitions under EPCRA § 313(e) to add or delete chemicals to or from the toxic chemicals list.¹⁹³ The policy emphasizes that prospective petitioners should consult with EPA and state and local agencies early in the process. The policy also sets out recommendations for the contents and format of § 313(e) petitions.

Subchapter III — General Provisions

Section 321 — Relationship to other laws

EPCRA specifically does not preempt any state or local law.¹⁹⁴ However, any state or local law enacted after August 1, 1985, that requires the submission of MSDS forms must require the format prescribed in § 311.¹⁹⁵ A state or local government may require information in addition to that required on the EPCRA MSDS form. All other state and local requirements and all federal requirements remain in full force and effect.¹⁹⁶

The decision by Congress in EPCRA to refrain from exercising its constitutional authority to preempt the field of hazard information disclosure to the community from state or local legislation is especially noteworthy when compared with the broad federal preemptive effect of hazard disclosure requirements in the occupational setting. Ironically, the OSH Act and the OSHA Hazard Communication Standard, which in many respects provide much of the foundation upon which EPCRA's regulatory scheme is based, explicitly preempt any state or local law pertaining to the same subject, i.e., hazard disclosure to employees, unless approved as a part of an OSH Act state plan.

The legislative history underlying the OSH Act underscores the importance of preemption because "state regulation [had not] proven sufficient to the need" and because "[t]he spread of industry and the mobility of the workplace combined to make the health and safety of the worker truly a national concern."¹⁹⁷ Furthermore, the preamble accompanying [18 ELR 10020] publication of the Hazard Communication Standard explained the rationale for federal preemption as a result of the "recent proliferation of state and local right-to-know laws" and the "regulatory burden" they imposed.¹⁹⁸ OSHA also noted the "strong policy justification for uniform application throughout the distribution system of a national" standard and concluded that a single federal standard would enhance employee protection as well as reduce the burden on interstate commerce posed by multiple laws.¹⁹⁹

In contrast to the occupational sphere, Congress appears to have had a change of heart when it enacted a national community right-to-know bill. The legislative history of EPCRA acknowledges that "after studying the patchwork of state and local right-to-know laws, the Committee determined that the Nation desperately needed a comprehensive federal program."²⁰⁰ However, the House Report noted the "Committee's ardent belief that any federal right-to-know law should establish a floor rather than a ceiling to state and local efforts in this area. Communities must have the flexibility to impose greater requirements when presented with greater needs than those specifically addressed in Title III. It makes inherently good sense to let communities have the final say in designing community right-to-know programs."²⁰¹ As a consequence of the decision not to preempt state or local laws, with the exception of the MSDS format requirements, Congress consciously declined to mandate a uniform nationwide system and signaled a willingness to accept a certain degree of duplication and/or confusion in return for the flexibility of not discouraging local or state initiatives.

Section 322 — Trade secrets

In recognition of the potential of EPCRA's reporting requirements to reveal routinely protected trade secrets,²⁰² Congress authorized regulated parties to withhold trade secrets from state commissions and local committees.²⁰³ The authority to withhold trade secrets is limited and subject to reporting to EPA and approval from EPA. In addition, any person may petition EPA for disclosure of the identity of a substance that has been designated a trade secret. In recognition of the seriousness of the protection of trade secrets, criminal penalties are prescribed for the unlawful disclosure of such secrets.

With regard to a hazardous chemical, an extremely hazardous substance, or a toxic chemical, any person required under §§ 303(d)(2), 303(d)(3), 311, 312, or 313 to submit information to any other person, may withhold the specific chemical identity²⁰⁴ of the substance pursuant to federal regulations to be adopted by EPA.²⁰⁵ To receive the benefit of this protection, the owner or operator must comply with the specific requirements of this section. In place of the specific chemical identity, the owner or operator must include the generic class or category of the hazardous chemical, extremely hazardous substance, or toxic chemical.

A person may withhold information as a trade secret provided the person:

(i) claims that such information is a trade secret, on the basis of the factors enumerated in subsection (b),

(ii) includes in the submittal referred to in paragraph (1) an explanation of the reasons why such information is claimed to be a trade secret, based on the factors enumerated in subsection (b), including a specific description of why such factors apply, and

(iii) submits to the Administrator a copy of such submittal, and the information withheld from such submittal.²⁰⁶

Failure by the person claiming the trade secret to submit to EPA all information required will subject that person to a civil penalty assessment of $10,000 per day of violation.²⁰⁷ Where EPA has determined that the information is not a trade secret, it may not be withheld.²⁰⁸

Any person may petition EPA for the disclosure of the specific chemical identity of any substance that is claimed to be a trade secret.²⁰⁹ If EPA fails to respond to the petition within nine months, any person may bring suit against EPA to compel it to render a decision.²¹⁰

Where a petition has been filed, or where EPA has initiated a review, EPA will make an initial determination that the trade secret claim is sufficient or insufficient.²¹¹ If EPA determines initially that the trade secret claim is sufficient, it must then notify the trade secret claimant that he has 30 days to supplement the explanation to support his assertions.²¹² If EPA concludes that the identity of the substance is a trade secret, then it must notify the petitioner that the information will not be disclosed.²¹³ The petitioner may seek judicial review of the determination.²¹⁴ If EPA concludes that the substance is not a trade secret, then EPA [18 ELR 10021] must notify the trade secret claimant of its intention to release the identity of the substance.²¹⁵ The claimant may appeal the determination to the Administrator of EPA.²¹⁶ An adverse decision of the Administrator is subject to judicial review.²¹⁷

In the event EPA determines initially that the trade secret claimant's claim is insufficient, EPA must so notify the claimant and advise the claimant that he has 30 days to appeal the determination to the Administrator of EPA.²¹⁸ The claimant may amend his original trade secret explanation by providing supplementary assertions to support the trade secret claim. Judicial review is available from any determination of the Administrator.²¹⁹

It is extremely important that the trade secret claimant provide a complete and detailed initial claim for trade secret protection. Not only will the original explanation form the basis for an initial determination that a substance is a trade secret, but failure to provide a sufficient explanation will subject the claimant to a civil penalty assessment by EPA.²²⁰ Also, after receiving the supplemental information, EPA may assess a civil penalty if the claimant provides insufficient assertions to support a finding that a substance should be treated as a trade secret.²²¹ An additional basis for the assessment of a civil penalty is where EPA determines the claim is "frivolous."²²² EPA may assess a penalty of up to $25,000 per claim for such violations.

Certain information must be divulged to the public relating to trade secrets. Where a health professional requires information regarding a trade secret substance for diagnostic or treatment purposes, then that information must be divulged in accordance with EPCRA § 323.²²³ Any information — except a specific chemical identity — submitted to EPA pursuant to §§ 322(a)(2) or 322(d)(3) is also available to the public.²²⁴ Where any person makes a showing to EPA that the information so provided to EPA is protected by 18 U.S.C. § 1905,²²⁵ then that information may not be disclosed except to other officers, employees, or authorized representatives of the United States carrying out their responsibilities under EPCRA.²²⁶

A state, acting through its governor, may request that EPA divulge to it any information obtained under §§ 322(a)(2) and 322(d)(3).²²⁷ This information includes the information that the claimant believes to be a trade secret.²²⁸ If EPA refuses or fails to provide this information, then the state is authorized to commence an action against EPA to compel it to provide the information.²²⁹

State commissions are required to identify the adverse health effects of substances claimed to be trade secrets where the substance is a hazardous chemical or extremely hazardous substance.²³⁰ The commission thereafter has a duty to disclose the information regarding adverse health effects to any person requesting it.²³¹ Where the identity of a toxic chemical is claimed to be a trade secret, EPA must identify the adverse health and environmental effects of the chemical.²³² This information must then be included in the computer database required under EPCRA § 313(j) and disclosed to any person requesting the information.²³³

Congress has provided that where a duly authorized committee of Congress requests any information reported to or obtained by EPA, then EPA shall divulge that information to the committee.²³⁴

Companies subject to this provision may take some solace in that EPCRA provides for criminal penalties for disclosure of trade secret information.²³⁵ In the event any person knowingly and willfully divulges or discloses any information entitled to protection under § 322, criminal penalties of not more than $20,000 or imprisonment not to exceed one year, or both, are prescribed.

EPA Implementation. On October 15, 1987, EPA published proposed rules outlining procedures for claims of trade secrecy for facilities reporting under EPCRA §§ 303(d)(2) and (d)(3), 311, 312, and 313, and governing submission and handling of petitions requesting disclosure of chemical identities claimed as trade secrets.²³⁶ The proposed regulations defined the term "trade secret," which was given no definition in the statute,²³⁷ as "any confidential formula, pattern, process, device, information or compilation of information that is used in a submitter's business, and that gives the submitter an opportunity to obtain an advantage over competitors who do not know or use it."²³⁸

[18 ELR 10022]

The "specific chemical identity," which EPCRA permits withholding as a trade secret, is defined in the regulation as including the "chemical name, Chemical Abstracts Service (CAS) Registry Number, or any other information that reveals the precise chemical designation of the substance." Under the definition, a trade name can also be treated as the specific chemical identity for trade secret claim purposes if the trade name is reported in lieu of the specific chemical identity.²³⁹

Noting that the statute is unclear as to the permissible scope for claims of trade secrecy for chemical identity, EPA has proposed allowing these claims to be made for the linkage between chemical identity and other information reported on EPCRA submissions such as specific process information and special handling procedures, plus claims relating to the presence of a chemical at a facility or the chemical composition of a chemical.²⁴⁰

For the generic class or category that must be identified for any chemical whose specific identity is being withheld pursuant to a trade secret claim, EPA has proposed three options. The first alternative invites local committees and facilities to work together to arrive at their choices of generic categories without any guidance offered by EPA. The second alternative would utilize the following five categories: (a) acute (immediate); (b) chronic; (c) fire; (d) sudden release of pressure; and (e) reactivity. The third alternative regarding choice of generic category involves a determination by committees and facilities based upon individual chemical structures.²⁴¹

EPA's proposed rule prescribes a form for use by submitters of trade secret claims.²⁴² This substantiation form must be completed and filed along with the report or submission for which the trade secrecy claim is being made.²⁴³ The form contains seven substantiation questions that are directed at eliciting information that would determine whether the four statutory criteria for receiving trade secrets protection found in § 322(b) of EPCRA have been met.²⁴⁴ The submission form must contain a certification signed by an officer of the facility stating that "the information included in the substantiation is true, accurate and complete to the best knowledge and belief of the submitter."²⁴⁵

Procedures are established for petitioning to request disclosure of chemical identity claimed as a trade secret.²⁴⁶ Petitions seeking disclosure must be submitted in writing and include the name, address, and telephone number of petitioner; the name, address, and company claiming the chemical identity as a trade secret; and must include a copy of the submission in which a facility claimed chemical identity as a trade secret.²⁴⁷

The proposal contains a number of specific criteria that are derived from the four statutory criteria listed at § 322(b) of EPCRA that must be met in order for EPA to rule favorably on the sufficiency of a trade secret claim. These regulatory criteria mandate that the answers to the questions posed in the substantiating form must demonstrate that the submitter has taken reasonable safeguards to prevent unauthorized disclosure of the specific chemical identity, has not disclosed it to any person not bound by a confidentiality agreement, nor has it been previously disclosed to any governmental entity without assertion of a confidentiality claim.²⁴⁸ In addition, there must be a showing that the chemical identity is not required to be released under a determination by any state or federal agency, or under a state or federal statute. Further, the facts must show that either competitors do not have knowledge that the substance can be used in the fashion used by the submitter and that duplication of the specific use cannot be [18 ELR 10023] determined by a competitor's own research activities, or that competitors are unaware that the submitter is using the substance in question in a particular fashion. It must also be shown that competitors are likely to use the information to the economic detriment of the submitter and are not precluded from doing so by a United States patent and that the resulting harm to the submitter's competitive position would be substantial. Finally, the criterion that chemical identity not be readily discoverable through reverse engineering must be supported by facts showing that competitors cannot reasonably learn the specific chemical identity by analysis of the submitter's products or environmental releases.²⁴⁹

Following review, if EPA finds a claim insufficient, notification must be given to the claimant by certified mail.²⁵⁰ At that point, the submitter has two options. It may appeal the finding of insufficiency to EPA's Office of General Counsel or it may amend its original substantiation by sending additional material in support of its trade secret claim, for good cause shown, within 30 days of receipt of the notification of insufficiency. If the good cause standard is not satisfied, EPA must notify the submitter by certified mail and review in U.S. District Court may be sought.

The criteria for "good cause" necessary for EPA acceptance of additional supporting materials are specific and narrow. Only if the submitter can demonstrate that he was unaware of the facts underlying the additional information at the time the original substantiation was submitted and could not reasonably have known the facts at that time, or if neither EPA regulations nor other EPA guidance called for such information at the time the substantiation was submitted, will the good cause standard be met.²⁵¹ If EPA finds the good cause standard is met and accepts the additional material for review yet still ultimately decides the trade secret claim is insufficient, notice by certified mail must be provided and the submitter afforded 30 days within which to seek review in U.S. District Court. The notification must include EPA's reasons for its determination and a notice of the rights of a submitter to seek review in a District Court.²⁵²

Safeguards are provided in the proposed regulations for the disclosure of trade secrets that are released by EPA to the states pursuant to EPCRA § 322(g).²⁵³ Concerned over the potential for leakage of Title III information used by various state agencies, EPA proposed to require states who request access to trade secret information in EPA's possession to make its request in writing, and provide the request from the governor of the state. Other safeguards include obtaining the state's agreement to safeguard the information with procedures equivalent to those EPA uses to safeguard the information, and disclosing trade secret information only to state employees.²⁵⁴

Section 323 — Provision of information to health professionals, doctors, and nurses

EPCRA provides that information that would otherwise be protected as a trade secret must be divulged, under certain circumstances, to health care professionals.²⁵⁵ The provisions for disclosure apply to information supplied by an owner or operator pursuant to §§ 311, 312, or 313 of EPCRA. Thus, an owner or operator who has designated as a trade secret the identity of substances classified as hazardous chemicals, extremely hazardous substances, and toxic chemicals, must divulge the trade secret to the health care professional. This information must be supplied in three instances: for diagnosis or treatment of individuals who have been exposed to the chemical; in medical emergencies; and for preventative measures by local health professionals.

A health professional may request trade secret information where the information is needed for purposes of diagnosis or treatment of an individual.²⁵⁶ To obtain the information, the health care professional must first file a written request with the owner or operator stating that the information is needed for the diagnosis or treatment of an individual, that the individual has been exposed to the chemical, and that knowledge of the specific identity of such chemical will assist in diagnosis of treatment.²⁵⁷ The owner or operator must "promptly" provide the requested information.²⁵⁸ To protect the owner or operator, the health care professional must execute, in advance, a written confidentiality agreement under § 323(d).²⁵⁹

In the case of a medical emergency, an owner or operator shall provide a copy of the MSDS form, inventory form, or a toxic chemical release form including the specific chemical identity of the substance to a treating physician or nurse.²⁶⁰ The physician or nurse is allowed to make the determination that a medical emergency exists, the identity of the substance is necessary for emergency or first aid diagnosis or treatment, and the individual being diagnosed or treated has been exposed to the chemical.²⁶¹ Immediately following the request, the owner or operator to whom the request is made shall provide the information. A written confidentiality agreement is not required as a precondition of the disclosure; however, one may be obtained "as soon as circumstances permit."²⁶² Failure to comply with this section will subject the owner or operator to a civil penalty assessment by EPA of $10,000 per day of violation.²⁶³

A health professional who is employed by a local government and who files a written request with an owner or operator is entitled to the identity of any specific chemical as a part of a medical surveillance program or to assess the exposure of persons living in the community to the hazards of the chemical.²⁶⁴ The medical professional must execute, in advance, a written confidentiality agreement. [18 ELR 10024] The information must be promptly disclosed by the owner or operator.

A special enforcement section for violations of EPCRA § 323 has been provided in the act.²⁶⁵ Whenever an owner or operator fails to comply with this section, the health professional may bring an action in the U.S. District Court to enforce compliance with the law.

EPA is required to promulgate regulations "as soon as practicable" after the date of enactment of EPCRA, describing the criteria and parameters for both the statements of need and confidentiality statements.²⁶⁶

EPA Implementation. On October 15, 1987, EPA published proposed regulations pursuant to § 323(e), which mandated promulgation of regulations "describing criteria and parameters" of the statement of need and confidentiality agreements necessary for disclosures of trade secret information to health professionals "as soon as practicable."²⁶⁷

The regulations supply a definition for the term "medical emergency," which must exist for an immediate release of a material safety data sheet, inventory form, or toxic chemical release form to a treating physician or nurse without the need for a written statement of need or confidentiality agreement beforehand.²⁶⁸ Although the text of the proposed regulation does not further define the term "immediate," EPA explained in the preamble that it interprets "immediate" to mean the owner or operator of the facility will provide the data over the telephone.²⁶⁹

In nonemergency situations, a request by a health professional for specific chemical identity must be in writing and must describe why the health professional has a reasonable basis to suspect that the chemical's identity is needed to diagnose or treat an individual, that the patient has been exposed to the chemical concerned, and that knowledge of the chemical identity would assist in the diagnosis or treatment.²⁷⁰

The proposed regulation defines several essential elements of the confidentiality agreement that must accompany the request for disclosure in a nonemergency situation, what may not be included in the confidentiality agreement, and several areas that are discretionary with the parties to the agreement. At a minimum, the confidentiality agreement must include (1) a description of the procedures to be used to maintain the confidentiality of the disclosed information and (2) a statement by the health professional that he will not use the information for any purpose other than the health needs asserted in the statement of need and will not release the information under any circumstances except as authorized by the terms of the confidentiality agreement or by the owner or operator of the facility providing the information.²⁷¹ The confidentiality agreements may limit the use of the information provided to the health purposes indicated in the written statement of need and may provide for specific legal remedies in the event of a breach of the agreement, including a liquidated damages provision if reasonable.²⁷² The proposed regulations specifically prohibit including in a confidentiality agreement any requirement for the posting of a penalty bond.²⁷³

Section 324 — Public availability of plans, data sheets, forms, and follow-up emergency notices

EPCRA provides that each emergency plan, MSDS, hazardous chemical list, inventory form, toxic chemical release form, and follow-up emergency notice will be made available to the public.²⁷⁴ The forms will be available at places designated by EPA, a governor, a state emergency response commission, or a local planning committee during normal working hours. Only the specific identities of chemicals designated as trade secrets by the operator or owner may be withheld.²⁷⁵ Where EPA, a governor, or a state emergency response commission fails to provide a mechanism for public availability of information in accordance with this section, a citizen suit may be brought to compel compliance.²⁷⁶ On an annual basis, the local planning committee is required to publish a notice in a local newspaper that emergency plans, MSDS, and inventory forms have been submitted and are available for review.²⁷⁷

Section 325 — Enforcement

EPCRA establishes civil, administrative, and criminal penalties for violations of various provisions of the law.²⁷⁸ The enforcement provisions are aimed primarily at owners and operators who violate the terms of EPCRA. No enforcement provision is contained in the act authorizing EPA to commence any action against a governor, state emergency response commission, or local emergency planning committee.

The act provides for criminal penalties for failure to provide emergency notification²⁷⁹ and unlawful disclosure of trade secrets.²⁸⁰ Civil and administrative penalties are [18 ELR 10025] established for violations of emergency planning, emergency notification, and reporting requirements. Health professionals are granted the right to take enforcement actions against owners or operators who withhold trade secret information in violation of § 323.²⁸¹ EPCRA establishes extensive procedures for the assessment of civil penalties and appeals from such assessments.²⁸²

EPA Implementation. While no regulatory procedures for issuance of compliance orders have yet been promulgated or proposed under EPCRA, EPA intends to issue regulations or guidance on this subject in the future and the agency has hinted that it may adopt procedures for the issuance of such orders along lines that have been developed under other environmental laws.²⁸³

Section 326 — Citizen suits

Citizen suits may be brought in response to various violations of EPCRA.²⁸⁴ Congress has not granted a blanket right to commence a citizen suit. Rather, such suits may be brought only for certain discrete violations of the act. While suits are authorized against owners and operators, EPA, governors, and state emergency response commissions, EPCRA does not authorize any citizen suit against local emergency planning committees.

Suits by "any person"²⁸⁵ are authorized against owners and operators for failure to submit various forms and notices required under EPCRA.²⁸⁶ Any person may bring an action against the Administrator of EPA for failure to timely publish regulations and forms, establish a computer database, or render a decision on declassifying a trade secret.²⁸⁷ Citizen suits are also authorized against EPA, a governor, or a state emergency response commission for failure to provide a mechanism for public availability of information.²⁸⁸ A suit may also be brought against a governor or state commission for failure to timely respond to a request for tier II information under § 312(e)(3).²⁸⁹

States and local governments may commence suit against an owner or operator for failure to provide various notification forms.²⁹⁰ States may also commence suit against EPA for failure to provide information on trade secrets pursuant to § 322(g).²⁹¹ State emergency response commissions and local emergency planning committees are granted the right to commence actions only against owners or operators for failure to provide comprehensive emergency response plans under § 303(d) and failure to provide tier II information under § 312(e)(1).²⁹² State commissions and local committees may not bring suit for any other purpose.

Venue for actions against the owner or operator is in the U.S. District Court for the district in which the violation occurred.²⁹³ Any actions against EPA must be brought in the U.S. District Court for the District of Columbia.

Prior to commencing any suit pursuant to this section, 60 days' notice must be given.²⁹⁴ In the case of a citizen suit against an owner or operator, notice must be given to the defendant, EPA, and the state. Where a citizen suit is brought against EPA,notice must be given to that agency. Where suit is brought for failure to provide a mechanism for public availability of information as required by § 324(a), notice must be given to EPA, the governor, or state commission in violation of the requirement. No prior notice is required in a citizen suit against a governor or state commission to compel a response to a tier II information request. States, local governments, state commissions, and local committees are not required to give notice prior to the commencement of suit under § 326(a)(2).²⁹⁵ Where EPA has commenced and is diligently pursuing an administrative order or civil action against an owner or operator, no suit may be brought against the owner or operator.²⁹⁶ The United States or a state may intervene in any action, as a matter of right.²⁹⁷ Any person may intervene in any action under § 326 as a matter of right, provided the intervenor shows he has a direct interest in the action and the disposition of the action will impair or impede his ability to protect that interest.²⁹⁸ EPA or a state, when a party to the action, may challenge the intervention of a citizen where it can show his right is adequately represented by the existing parties in the action.

In actions brought by any person against an owner or operator, the court must enforce the requirement and impose any civil penalty provided for violation of the requirement.²⁹⁹ Civil penalties would be payable to the United States.³⁰⁰ The court may award the costs of litigation, including attorney and expert witness fees, to the prevailing or the substantially prevailing party, whenever the court determines such an award is appropriate.³⁰¹

Section 327 — Transportation exemption

Subject to a single exception, Congress specifically exempts transportation from the requirements of EPCRA.³⁰² Included in this exemption are transportation and storage incident to transportation (e.g., warehouses and transfer facilities).³⁰³ All substances and chemicals subject to [18 ELR 10026] EPCRA, including natural gas, are exempt. Transporters are required, however, to comply with EPCRA § 304 relating to emergency notification of releases.³⁰⁴

III. EPCRA and Its Relationship to OSHA's Hazard Communication Standard

The dependence of the regulation scheme created by EPCRA in a number of critical areas upon terms, definitions, and applications of OSHA's Hazard Communication Standard merits a closer examination of the nature and scope of federal regulation of hazard disclosure to employees in the workplace. A cursory glance at the provisions of EPCRA makes it clear that much of the community right-to-know program on the federal level was designed to rest upon a foundation that has been laid and is continuing to be built by OSHA in promulgating the Hazard Communication Standard. The responsibility of facility owners and operators to furnish MSDS or chemical lists under EPCRA § 311 and complete emergency and hazardous chemical inventory forms under EPCRA § 312 are based on whether those facility owners or operators are required by the Hazard Communication Standard to prepare or have available an MSDS.³⁰⁵ Put simply, if OSHA requires an MSDS for the purpose of informing the facility's employees of hazardous chemical information, then the facility is obligated to pass that same information on to the public under EPCRA. The OSHA Standard not only answers the threshold question of whether an MSDS is required, but also supplies the content of the MSDS.³⁰⁶

Another key EPCRA provision that draws upon the OSHA Standard as precedent is the definition of the term "hazardous chemical," which according to § 311(e) follows the meaning given the term by OSHA. In addition, regulations that EPA is required to issue implementing the reverse engineering factor in EPCRA's trade secret provision³⁰⁷ must be equivalent to comparable provisions in the OSHA Standard.³⁰⁸

OSHA published the Hazard Communication Standard on November 25, 1983,³⁰⁹ under the authority of the OSH Act.³¹⁰ The Standard requires chemical manufacturers and importers to evaluate the hazards of the chemicals they produce or import, and all manufacturers in SIC Codes 20-39 were required to develop hazard communication programs for their employees exposed to hazardous chemicals. The hazard communication programs would list the hazardous chemicals in their workplace and describe the methods employers will use to inform employees of hazards associated with exposure to the chemicals.³¹¹ MSDSs must be prepared by chemical manufacturers and importers for every hazardous substance addressed by the Standard. The MSDSs are to be forwarded to distributors who must make them available to all employers in a manufacturing sector.³¹² Chemical manufacturers, importers, and distributors are required to label the containers of hazardous chemicals leaving their workplaces with chemical identification and hazard warnings, while these entities and all manufacturing sector employers are required to so label hazardous chemical containers located in their workplaces.³¹³

Initially, OSHA intended that the Standard apply to employers in the manufacturing sector only. However, a challenge was brought in the U.S. Court of Appeals for the Third Circuit that ultimately ordered OSHA to expand the scope of the Hazard Communication Standard's coverage beyond the manufacturing sector or explain why it would not be feasible for the same standard to be applied in other sectors where workers are exposed to similar hazards.³¹⁴ In response to that court decision,³¹⁵ OSHA issued a revised Hazard Communication Standard on August 24, 1987.³¹⁶ Although the revised Standard effected only relatively minor changes in the nature of the hazard disclosure responsibilities in the occupational sector, it ordained a vast extension of the scope of the Standard that would, nine months after publication or May 23, 1988, apply to all employers subject to OSHA. The extension of this Standard to the nonmanufacturing sector is estimated to bring another 4.5 million employers and employing almost 59 million workers within its hazard disclosure responsibilities and safeguards.³¹⁷

Consequently, depending on whether hazardous chemicals are present in a particular workplace, facilities subject to the EPCRA MSDS and hazardous chemical inventory form requirements will expand in August of 1988 from several hundred thousand to several million potentially. Since EPCRA has the Hazard Communication Standard legislated into its provisions, implementation will not be the exclusive domain of EPA, but rather will remain sensitive to any fine tuning conducted by OSHA.

IV. Critique of EPCRA

EPCRA provides important mechanisms for emergency planning and community right-to-know. Nevertheless, the [18 ELR 10027] authors perceive that EPCRA contains several potential problem areas for both businesses and local planning interests. EPCRA's failure to preempt the field of emergency planning and community right-to-know from supplemental state and local regulation will interfere with the development of clear, uniform rights and responsibilities for both industry and the public. The creation of a floor of federal rights only, permits radically divergent local interests to impose varied additional obligations that will increase the costs of compliance dramatically due to additional paperwork, different chemical lists, and additional information to be reported. Because EPCRA is so pervasive, it should have preempted state law. It is not clear that any additional state protection would outweigh the previously described benefits. For businesses with facilities in different local districts, adaptation to a multiplicity of different laws and regulations will be disruptive and expensive. There is little justification for the disparate treatment of preemption for hazard information disclosure in the occupational sphere under OSHA as compared to community disclosure under EPCRA.

The provision of EPCRA requiring regulated businesses to divulge legitimate trade secrets to EPA presents a formidable burden for business. While information on the effects of hazardous substances must be made available for EPCRA to be successful, many companies will be forced to divulge important proprietary information to EPA. Despite the regulatory safeguards and sanctions preventing disclosure of trade secrets, once this information is released, the owner or operator will have no control over whether this information falls into the hands of his competitors. The requirement for divulging trade secrets to EPA could potentially ruin many businesses. Where an individual wrongfully releases trade secret information and that release destroys the profitability of a product, it is unlikely the business will recover its loss. Unlawful disclosures from anonymous sources, within Congress, state governments, and EPA could go unredressed. The remedies provided for under EPCRA and its regulations will be insufficient to fully compensate for the loss of important trade secrets.

While the federal government must comply with other environmental laws, it is exempt from complying with EPCRA. Because many government facilities are located in populated areas, this presents an unfortunate loophole in the Act. It would have made more sense to provide a national security exemption, rather than a blanket exemption, for federal facilities.

The exemption of transportation from all EPCRA planning, rights, and obligations, except notification of emergency releases, constitutes a potentially significant gap in the comprehensiveness of the regulatory scheme. Paradoxically, transportation is characterized by a unique vulnerability that would especially merit the advanced planning and local right-to-know of EPCRA. The likelihood of releases or accidents increases when substances are handled, transferred, or moved in transportation. Transportation accident sites are often remote from the home facility that possesses greater expertise and safety equipment to contain the release, and the public is more apt to be nearby as compared to a release that occurs at a stationary facility in an area zoned for industry. The inclusion of storage incident to transportation significantly broadens the exemption by keeping warehouses, depots, and loading areas outside the realm of EPCRA. While transportation interests may argue the practical difficulty involved in planning compliance for moving goods, this argument would not apply to stationary facilities.

EPCRA provides a collateral benefit for litigants and potential litigants, as it is a powerful informal discovery tool for litigation regarding facilities, toxic torts, personal injuries, product liability, and zoning. Parties and potential parties will request information regarding substances from state commissions, local committees, and fire departments that could have been unobtainable through formal discovery. EPCRA also provides a means of targeting potential defendants in personal injury actions by aiding in the identification of substances that may have caused the injury and the potential defendant responsible for those substances. This is an added dimension of EPCRA that was not created by the OSH Act's Hazard Communication Standard, as employees' receipt of similar information under the OSH Act due to Worker's Compensation provisions prevented suits against employers in most states. While EPCRA does not specifically provide for actions against local emergency planning committees, it also does not immunize the committees or their members from suit for failure to fulfill EPCRA duties. These individuals and committees are left to whatever protection is provided by state and common law.

V. Conclusion

EPCRA represents one more significant step in the progress of federal leadership and environmental control. By seizing the initiative in forcing states and localities to confront the challenge of preparing for, and hopefully minimizing, the effects of our future chemical catastrophies, EPCRA's impact on the environmental regulatory landscape will likely be substantial and far-ranging.

The policy of promoting advance planning and the exchange of information from regulated businesses to the public is laudable. In accomplishing this policy, however, EPCRA limits the rights of businesses to protect proprietary information and imposes significant regulatory burdens on these enterprises. While the concept of EPCRA is necessary, it is unfortunate that this legislation has been enacted at such great expense to the regulated community.

1. Superfund Amendments and Reauthorization Act, Title III, Pub. L. 99-499, 100 Stat. 1613 (1986), 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA 001.

2. Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA 001.

3. Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6987, ELR STAT. RCRA 001.

4. Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629.

5. 42 U.S.C. §§ 9601-9675, ELR STAT. 44001.

6. 29 U.S.C. §§ 651-678.

7. 48 Fed. Reg. 53280 (Nov. 25, 1983) (codified at 29 C.F.R. § 1910.1200).

8. Pub. L. 99-499, 100 Stat. 1613 (1986). For a detailed analysis of SARA, see Atkeson et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10360 (Dec. 1986).

9. A.L. Laboratories, Inc. v. EPA, 826 F.2d 1123, 17 ELR 21093 (D.C. Cir. 1987).

10. EPCRA § 301, 42 U.S.C. § 11001, ELR STAT. EPCRA 002.

11. EPCRA § 301(a), 42 U.S.C. § 11001(a), ELR STAT. EPCRA 002. All state commissions have been appointed as of the date of this article.

12. EPCRA § 301(a), (b), 42 U.S.C. § 11001 (a), (b), ELR STAT. EPCRA 002.

13. EPCRA § 301(b), 42 U.S.C. § 11001(b), ELR STAT. EPCRA 002.

14. Id.

15. Id. As of October 1987, Georgia, Minnesota, New Hampshire, Oregon, and Delaware had designated the entire state as an emergency planning district. INSIDE EPA 7-8 (Oct. 23, 1987).

16. EPCRA § 301(d), 42 U.S.C. § 11001(d), ELR STAT. EPCRA 002.

17. EPCRA § 301(c), 42 U.S.C. § 11001(c), ELR STAT. EPCRA 002. Approximately one-half of the states had formed such committees, as of the date of this Article.

18. Id.

19. EPCRA § 301(d), 42 U.S.C. § 11001(d), ELR STAT. EPCRA 002.

20. Id.

21. EPCRA § 301(c), 42 U.S.C. § 11001(c), ELR STAT. EPCRA 002.

22. Id.

23. EPCRA § 302(a), 42 U.S.C. § 11002(a), ELR STAT. EPCRA 002.

24. 52 Fed. Reg. at 13378 (Apr. 22, 1987).

25. 40 C.F.R. § 355.30(a).

26. EPCRA § 302(a)(4), 42 U.S.C. § 11002(a)(4), ELR STAT. EPCRA 002.

27. Id.

28. Id.

29. 52 Fed. Reg. 13387-88 (Apr. 22, 1987).

30. EPCRA § 302(a)(4), 42 U.S.C. § 11002(a)(4), ELR STAT. EPCRA 002.

31. EPCRA § 302(b), 42 U.S.C. § 11002(b), ELR STAT. EPCRA 002.

32. EPCRA § 329(4), 42 U.S.C. § 11049(4), ELR STAT. EPCRA 012.

33. EPCRA § 304, 42 U.S.C. § 11004, ELR STAT. EPCRA 003.

34. EPCRA § 329(4), 42 U.S.C. § 11049(4), ELR STAT. EPCRA 012.

35. EPCRA § 329(7), 42 U.S.C. § 11049(7), ELR STAT. EPCRA 012.

36. Id. Compare CERCLA, which specifically includes the United States government under the definition of "person." CERCLA § 101(21), 42 U.S.C. § 9601(21), ELR STAT. 44006.

37. EPCRA § 302(b)(2), 42 U.S.C. § 11002(b)(2), ELR STAT. EPCRA 002.

38. EPCRA § 302(d), 42 U.S.C. § 11002(d), ELR STAT. EPCRA 002.

39. EPCRA § 302(c), 42 U.S.C. § 11002(c), ELR STAT. EPCRA 002.

40. Id.

41. EPCRA § 325(a), 42 U.S.C. § 11045(a), ELR STAT. EPCRA 010.

42. Id.

43. EPCRA § 326(a)(2)(A)(i), 42 U.S.C. § 11046(a)(2)(A)(i), ELR STAT. EPCRA 011.

44. EPCRA § 302(d), 42 U.S.C. § 11002(d), ELR STAT. EPCRA 002.

45. 51 Fed. Reg. 41570 (Nov. 17, 1986).

46. EPCRA § 302(a)(2), 42 U.S.C. § 11002(a)(2), ELR STAT. EPCRA 002.

47. EPCRA § 302(a)(3)(c); 42 U.S.C. § 11002(a)(3)(c), ELR STAT. EPCRA 002.

48. 51 Fed. Reg. 41578 (Nov. 17, 1986).

49. See List of extremely hazardous substances, threshold planning quantities and reportable quantities. 51 Fed. Reg. 41582-92 (Nov. 17, 1986).

50. 51 Fed. Reg. 41593 (Nov. 17, 1986).

51. 51 Fed. Reg. 41594 (Nov. 17, 1986).

52. According to EPCRA § 302(c), owners or operators of each facility subject to the reporting requirements must notify the State Emergency Response Commission "not later than seven months after October 17, 1986."

53. 52 Fed. Reg. 13378 (Apr. 22, 1987).

54. One chemical, urea, 3-[3, 4-dichlorophenyl] 1-methoxy-1-methyl-, CAS-number 330-55-2, was rejected in the final rule because of new data indicating the chemical does not meet the acute toxicity criteria. 52 Fed. Reg. 13381 (Apr. 22, 1987).

55. 52 Fed. Reg. 13388 (Apr. 22, 1987).

56. 52 Fed. Reg. 13387 (Apr. 22, 1987).

57. 52 Fed. Reg. 13397-410 (Apr. 22, 1987) (to be codified as Appendix A to 40 C.F.R. Part 355).

58. 52 Fed. Reg. 13381 (Apr. 22, 1987).

59. 52 Fed. Reg. 13396 (Apr. 22, 1987) (to be codified at 40 C.F.R. § 355.30(e)).

60. 52 Fed. Reg. 13392, 13395 (Apr. 22, 1987) (to be codified at 40 C.F.R. § 355.20).

61. 52 Fed. Reg. 13391, 13392 (Apr. 22, 1987).

62. 52 Fed. Reg. 13396 (Apr. 22, 1987) (to be codified at 40 C.F.R. § 355.30(e)(2)).

63. EPCRA § 303, 42 U.S.C. § 11003, ELR STAT. EPCRA 002.

64. EPCRA § 303(a), 42 U.S.C. § 11003(a), ELR STAT. EPCRA 002.

65. EPCRA § 303(c), 42 U.S.C. § 11003(c), ELR STAT. EPCRA 002. The EPA National Response Team has prepared a free guide for local committees to assist them in preparing emergency plans. It is entitled "Hazardous Materials Emergency Planning Guide." It may be obtained by writing to: HAZMAT Planning Guide, United States Environmental Protection Agency, WH-562A, 401 M Street, S.W., Washington, D.C. 20460.

66. EPCRA § 303(d)(1), 42 U.S.C. § 11003(d)(1), ELR STAT. EPCRA 003.

67. EPCRA § 303(d)(2), 42 U.S.C. § 11003(d)(2), ELR STAT. EPCRA 003.

68. EPCRA § 303(d)(3), 42 U.S.C. § 11003(d)(3), ELR STAT. EPCRA 003.

69. EPCRA § 322(a)(1)(A), 42 U.S.C. § 11042(a)(1)(A), ELR STAT. EPCRA 009.

70. EPCRA § 325(a), 42 U.S.C. § 11045(a), ELR STAT. EPCRA 010.

71. EPCRA § 326(a)(2)(B), 42 U.S.C. § 11046(a)(2)(B), ELR STAT. EPCRA 012.

72. EPCRA § 303(e), 42 U.S.C. § 11003(e), ELR STAT. EPCRA 003.

73. EPCRA § 303(f), (g), 42 U.S.C. § 11003 § (f), (g), ELR STAT. EPCRA 003.

74. EPCRA § 304, 42 U.S.C. § 11004, ELR STAT. EPCRA 003.

75. "Release" is defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment (including the abandonment or discharging of barrels, containers, and other closed receptacles) of any hazardous chemical, extremely hazardous substance or toxic chemical." EPCRA § 329(8), 42 U.S.C. § 11049(8), ELR STAT. EPCRA 012.

76. "Hazardous chemical" is defined by EPCRA as "the meaning given that term by section 1910.1200(c) of title 29 of the Code of Federal Regulations…." EPCRA § 311(e), 42 U.S.C. § 11021(e), ELR STAT. EPCRA 005. The specific definition therein is: "any chemical which is a physical hazard or a health hazard." 29 C.F.R. § 1910.1200(c). Physical hazard and health hazard are further defined in the Hazard Communication Standard.

77. EPCRA § 304(a), 42 U.S.C. § 11004(a), ELR STAT. EPCRA 003.

78. EPCRA § 304(b), 42 U.S.C. § 11004(b), ELR STAT. EPCRA 003.

79. EPCRA § 304(a)(4), 42 U.S.C. § 11004(a)(4), ELR STAT. EPCRA 003.

80. EPCRA § 304(b), 42 U.S.C. § 11004(b), ELR STAT. EPCRA 003.

81. EPCRA § 304(b)(1), 42 U.S.C. § 11004(b)(1), ELR STAT. EPCRA 003.

82. EPCRA § 304(b)(2), 42 U.S.C. § 11004(b)(2), ELR STAT. EPCRA 003.

83. EPCRA § 304(c), 42 U.S.C. § 11004(c), ELR STAT. EPCRA 003.

84. Id.

85. EPCRA § 325(b), 42 U.S.C. § 11045(b), ELR STAT. EPCRA 010.

86. EPCRA § 325(b)(4), 42 U.S.C. § 11045(b)(4), ELR STAT. EPCRA 010.

87. EPCRA § 326(a)(1)(A)(i), § 11046(a)(1)(A)(i), ELR STAT. EPCRA 011.

88. 52 Fed. Reg. 13396 (Apr. 22, 1987).

89. 52 Fed. Reg. 13396 (Apr. 22, 1987) (to be codified at 40 C.F.R. § 355.40(a)(2)).

90. 52 Fed. Reg. 13396 (Apr. 22, 1987) (to be codified at 40 C.F.R. § 355.40(b)).

91. 52 Fed. Reg. 13393 (Apr. 22, 1987).

92. 52 Fed. Reg. 13396 (Apr. 22, 1987) (to be codified at 40 C.F.R. § 355.40(b)(2)).

93. EPCRA § 305(a)(1), 42 U.S.C. § 11005(a)(1), ELR STAT. EPCRA 003.

94. EPCRA § 305(a)(2), 42 U.S.C. § 11005(a)(2), ELR STAT. EPCRA 004.

95. EPCRA § 305(b), 42 U.S.C. § 11005(b), ELR STAT. EPCRA 004.

96. EPCRA §§ 311-313, 42 U.S.C. §§ 11021-11023, ELR STAT. EPCRA 005-008.

97. EPCRA § 311(a), 42 U.S.C. § 11021(a), ELR STAT. EPCRA 005.

98. Id.

99. EPCRA § 311(a)(2), 42 U.S.C. § 11021(a)(2), ELR STAT. EPCRA 005.

100. EPCRA § 326(a)(1)(A)(ii), 42 U.S.C. § 11046(a)(1)(A)(ii), ELR STAT. EPCRA 011.

101. EPCRA § 326(a)(2)(A)(ii), 42 U.S.C. § 11046(a)(2)(A)(ii), ELR STAT. EPCRA 011.

102. EPCRA § 311(a)(2)(A), 42 U.S.C. § 11021(a)(2)(A), ELR STAT. EPCRA 005.

103. EPCRA § 311(a)(2)(B), 42 U.S.C. § 11021(a)(2)(B), ELR STAT. EPCRA 005.

104. EPCRA § 311(c)(1), 42 U.S.C. § 11021(c)(1), ELR STAT. EPCRA 005.

105. EPCRA § 311(c)(2), 42 U.S.C. § 11021(c)(2), ELR STAT. EPCRA 005.

106. EPCRA § 326(a)(2)(A)(iii), 42 U.S.C. § 11046(a)(2)(A)(iii), ELR STAT. EPCRA 011.

107. EPCRA § 311(d)(1), 42 U.S.C. § 11021(d)(1), ELR STAT. EPCRA 005.

108. EPCRA § 322(a)(1)(A), 42 U.S.C. 11042(a)(1)(A), ELR STAT. EPCRA 009.

109. EPCRA § 325(c), 42 U.S.C. § 11045(c), ELR STAT. EPCRA 011.

110. EPCRA § 312, 42 U.S.C. § 11022, ELR STAT. EPCRA 005.

111. EPCRA § 312(a)(1), 42 U.S.C. § 11022(a)(1), ELR STAT. EPCRA 005.

112. EPCRA § 312(c), 42 U.S.C. § 11022(c), ELR STAT. EPCRA 005.

113. EPCRA § 312(a)(2), 42 U.S.C. § 11022(a)(2), ELR STAT. EPCRA 005.

114. EPCRA § 312(e), 42 U.S.C. § 11022(e), ELR STAT. EPCRA 006.

115. EPCRA § 312(a)(2), 42 U.S.C. § 11022(a)(2), ELR STAT. EPCRA 005.

116. EPCRA § 312(g), 42 U.S.C. § 11022(g), ELR STAT. EPCRA 006. The inventory forms were published in final form on October 15, 1987, 52 Fed. Reg. 38367-77 (Oct. 15, 1987) and are now available from EPA.

117. EPCRA § 312(d)(1)(B), 42 U.S.C. § 11022(d)(1)(B), ELR STAT. EPCRA 005.

118. EPCRA § 312(d)(1)(C), 42 U.S.C. § 11022(d)(1)(C), ELR STAT. EPCRA 005.

119. EPCRA § 322(a)(1)(A), 42 U.S.C. § 11042(a)(1)(A), ELR STAT. EPCRA 005.

120. EPCRA § 312(e)(1), 42 U.S.C. § 11022(e)(1), ELR STAT. EPCRA 006.

121. EPCRA § 312(e)(2), 42 U.S.C. § 11022(e)(2), ELR STAT. EPCRA 006.

122. EPCRA § 312(e)(3)(A), 42 U.S.C. § 11022(e)(3)(A), ELR STAT. EPCRA 006.

123. EPCRA § 312(e)(3)(B), 42 U.S.C. § 11022(e)(3)(B), ELR STAT. EPCRA 006.

124. Id.

125. EPCRA § 312(e)(3)(C), 42 U.S.C. § 11022(e)(3)(C), ELR STAT. EPCRA 006.

126. EPCRA § 312(e)(3)(D), 42 U.S.C. § 11022(e)(3)(D), ELR STAT. EPCRA 006.

127. EPCRA § 312(d)(2), 42 U.S.C. § 11022(d)(2), ELR STAT. EPCRA 006. An owner or operator may elect to prevent disclosure to the public of the location of hazardous chemicals. EPCRA § 324(a), 42 U.S.C. § 11044(a), ELR STAT. EPCRA 009.

128. EPCRA § 312(f), 42 U.S.C. § 11022(f), ELR STAT. EPCRA 006.

129. EPCRA § 325(c)(1), 42 U.S.C. § 11045(c)(1), ELR STAT. EPCRA 011.

130. EPCRA § 326(a)(1)(A)(iii), 42 U.S.C. § 11046(a)(1)(A)(iii), ELR STAT. EPCRA 011.

131. EPCRA § 326(a)(2)(A)(iv), 42 U.S.C. § 11046(a)(2)(A)(iv), ELR STAT. EPCRA 011.

132. EPCRA § 326(a)(1)(D), 42 U.S.C. § 11046(a)(1)(D), ELR STAT. EPCRA 011.

133. EPCRA § 326(a)(2)(B), 42 U.S.C. § 11046(a)(2)(B), ELR STAT. EPCRA 011.

134. 52 Fed. Reg. 38344-77 (Oct. 15, 1987).

135. For facilities in SIC Codes outside 20-39 to which the OSHA Hazard Communication Standard will become applicable as of May 23, 1988, tier I information must be submitted annually beginning March 1, 1989. 52 Fed. Reg. 38344 (Oct. 15, 1987).

136. 52 Fed. Reg. 38365 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 370.20(b)(i).

137. 52 Fed. Reg. 38365 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 370.20(b)(ii)).

138. 52 Fed. Reg. 38350 (Oct. 15, 1987). EPA expressed the preference that the balance of the concerns registered with it weigh in favor of a non-zero threshold but the agency declined to set a final threshold in its final rule stating that it "will propose one after conducting a study of alternative thresholds." Apparently "five hundred pounds … will be the point of departure for discussion of a final threshold."

139. 52 Fed. Reg. 38367 (Oct. 15, 1987).

140. 52 Fed. Reg. 38365 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 370.20(b)(2)).

141. 52 Fed. Reg. 38365 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 370.20(b)(3)).

142. 52 Fed. Reg. 38365 (Oct. 15, 1987) (to be codified at 40 C.F.R. §§ 370.21(a) and 370.25(a)).

143. 52 Fed. Reg. 38365 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 370.21(b)). EPA has reduced the original twenty-three OSHA hazardous chemical categories to five: (1) immediate health hazard; (2) delayed health hazard; (3) fire hazard; (4) sudden release of pressure hazard; (5) reactive hazard. 52 Fed. Reg. 38365 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 370.2).

144. 52 Fed. Reg. 38366 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 370.28(a)).

145. 52 Fed. Reg. 38366 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 370.28(b)).

146. EPCRA § 313(a), 42 U.S.C. § 11023(a), ELR STAT. EPCRA 006.

147. H.R. CONF. REP. NO. 962, 99th Cong., 2d Sess., reprinted in 1986 U.S. CODE CONG. & ADMIN. NEWS. 3385.

148. EPCRA § 313(h), 42 U.S.C. § 11023(h), ELR STAT. EPCRA 007.

149. EPCRA § 324(a), 42 U.S.C. § 11044(a), ELR STAT. EPCRA 010.

150. EPCRA § 313(a), 42 U.S.C. § 11023(a), ELR STAT. EPCRA 006.

151. EPCRA § 313(c), 42 U.S.C. 11023(c), ELR STAT. EPCRA 006, reprinted in 52 Fed. Reg. 21168-77 (June 4, 1987).

152. EPCRA § 313(d)(2), 42 U.S.C. § 11023(d)(2), ELR STAT. EPCRA 006.

153. EPCRA § 313(d)(3), 42 U.S.C. § 11023(d)(3), ELR STAT. EPCRA 007.

154. EPCRA § 313(e)(1), 42 U.S.C. § 11023(e)(1), ELR STAT. EPCRA 007.

155. EPCRA § 313(e)(1), 42 U.S.C. § 11023(e)(1), ELR STAT. EPCRA 007.

156. EPCRA § 326(a)(1)(B)(ii), 42 U.S.C. § 11046(a)(1)(B)(ii), ELR STAT. EPCRA 007.

157. EPCRA § 313(e)(2), 42 U.S.C. § 11023(e)(2), ELR STAT. EPCRA 007.

158. Id.

159. EPCRA § 313(f)(1)(A), 42 U.S.C. § 11023(f)(1)(A), ELR STAT. EPCRA 007.

160. EPCRA § 313(f)(1)(B), 42 U.S.C. § 11023(f)(1)(B), ELR STAT. EPCRA 007.

161. EPCRA § 313(f)(2), 42 U.S.C. § 11023(f)(2), ELR STAT. EPCRA 007.

162. This requirement applies to SIC Codes 20 through 39 in effect on July 1, 1985. EPCRA § 313(b)(1), 42 U.S.C. § 11023(b)(1), ELR STAT. EPCRA 006. These codes relate primarily to manufacturing sector of the economy. See 29 C.F.R. § 1910.1200.

163. "Manufacture" is defined to mean "produce, prepare, import, or compound a toxic chemical." EPCRA § 313(b)(1)(C)(i), 42 U.S.C. § 11023(b)(1)(C)(i), ELR STAT. EPCRA 006.

164. "Process" is defined to mean "the preparation of a toxic chemical, after its manufacture, for distribution in commerce — (I) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such chemical, or (II) as part of an article containing the toxic chemical." EPCRA § 313(b)(1)(C)(ii), 42 U.S.C. § 11023(b)(1)(C)(ii), ELR STAT. EPCRA 006.

165. EPCRA § 313(b)(1), 42 U.S.C. § 11023(b)(1), ELR STAT. EPCRA 006.

166. EPCRA § 313(b)(1)(B), 42 U.S.C. § 11023(b)(1)(B), ELR STAT. EPCRA 006; H.R. CONF. REP. NO. 962, 99th Cong. 2d Sess. 292, reprinted in 1986 U.S. CODE. CONG. & ADMIN. NEWS. 3385-86.

167. EPCRA § 313(b)(2), 42 U.S.C. § 11023(b)(2), ELR STAT. EPCRA 006.

168. EPCRA § 313(b)(2), 42 U.S.C. § 11023(b)(2), ELR STAT. EPCRA 006.

169. EPCRA § 313(g)(1), 42 U.S.C. § 11023(g)(1), ELR STAT. EPCRA 007.

170. EPCRA § 326(a)(1)(B)(iii), 42 U.S.C. § 11046(a)(1)(B)(iii), ELR STAT. EPCRA 011.

171. EPCRA § 313(g)(1), 42 U.S.C. § 11023(g)(1), ELR STAT. EPCRA 007.

172. EPCRA § 313(g)(2), 42 U.S.C. § 11023(g)(2), ELR STAT. EPCRA 007.

173. Id.

174. EPCRA § 313(a), 42 U.S.C. § 11023(a), ELR STAT. EPCRA 006.

175. EPCRA § 313(i), 42 U.S.C. § 11023(i), ELR STAT. EPCRA 007.

176. EPCRA § 313(a), 42 U.S.C. § 11023(a), ELR STAT. EPCRA 006.

177. EPCRA § 322(a)(1)(A), 42 U.S.C. § 11042(a)(1)(A), ELR STAT. EPCRA 009.

178. EPCRA § 326(a)(1)(A)(iv), 42 U.S.C. § 11046(a)(1)(A)(iv), ELR STAT. EPCRA 011.

179. EPCRA § 313(j), 42 U.S.C. § 11023(j), ELR STAT. EPCRA 008.

180. EPCRA § 326(a)(1)(B)(iv), 42 U.S.C. § 11046(a)(1)(B)(iv), ELR STAT. EPCRA 011.

181. EPCRA § 313(k), 42 U.S.C. § 11023(k), ELR STAT. EPCRA 008.

182. EPCRA § 313(1), 42 U.S.C. § 11023(1), ELR STAT. EPCRA 008. The so-called "mass-balance" study.

183. EPCRA § 325(c)(1), 42 U.S.C. § 11046(c)(1), ELR STAT. EPCRA 010.

184. 52 Fed. Reg. 21168 (June 4, 1987) (to be codified at 40 C.F.R. § 372.10).

185. 52 Fed. Reg. 21168 (June 4, 1987) (to be codified at 40 C.F.R. § 372.45).

186. To illustrate the reporting requirements, EPA used an example of a company that manufactured 20,000 pounds of a listed toxic chemical and used 15,000 pounds during a calendar year. This company must report emissions of the chemical from the manufacturing and "use" activities, even though the company exceeded only the use threshold. 52 Fed. Reg. 21157 (June 4, 1987).

187. 52 Fed. Reg. 21167 (June 4, 1987) (to be codified at 40 C.F.R. § 372.3). The following statement is added to the definition of "manufacture': "Manufacture also applies to substances that are produced coincidentally during the manufacture, processing, use, or disposal of another substance or mixture, including by-products and co-products that are separated from that other substance or mixture, and impurities that remain in that substance or mixture." Added to the definition of the term "process": "Process also applies to the processing of a toxic chemical contained in a mixture or trade name product."

188. 52 Fed. Reg. 21167 (June 4, 1987) (to be codified at 40 C.F.R. § 372.3).

189. 52 Fed. Reg. 21168 (June 4, 1987) (to be codified at 40 C.F.R. § 372.16).

190. Id.

191. § 313(b)(1)(B); 42 U.S.C. § 11023(b)(1)(B), ELR STAT. EPCRA 006.

192. 52 Fed. Reg. 21154 (June 4, 1987).

193. 52 Fed. Reg. 3479 (Feb. 4, 1987), ELR ADMIN. MATERIALS 35103.

194. EPCRA § 321(a)(1), 42 U.S.C. § 11041(a)(1), ELR STAT. EPCRA 009.

195. EPCRA § 321(b), 42 U.S.C. § 11041(b), ELR STAT. EPCRA 009.

196. EPCRA § 321(a), 42 U.S.C. § 11041(a), ELR STAT. EPCRA 009.

197. S. REP. NO. 1281, 91st Cong. 2d Sess. 4, reprinted in 1970 U.S. CODE CONG. AND ADMIN. NEWS 5180.

198. 48 Fed. Reg. 53283-84 (Nov. 25, 1983).

199. 48 Fed Reg. 53334 (Nov. 25, 1983).

200. H.R. No. 99-253 (V), COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION, H.R. 2817, 5 U.S. CODE CONG. AND ADMIN. NEWS 3220 (1986).

201. Id.

202. A person claiming trade secret designation must show that:

(1) Such person has not disclosed the information to any other person, other than a member of a local emergency planning committee, an officer or employee of the United States or a state or local government, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has taken reasonable measures to protect the confidentiality of such information and intends to continue to take such measures.

(2) The information is not required to be disclosed, or otherwise made available, to the public under any other Federal or State law.

(3) Disclosure of the information is likely to cause substantial harm to the competitive position of such person.

(4) The chemical identity is not readily discoverable through reverse engineering.

EPCRA § 322(b), 42 U.S.C. § 11042(b), ELR STAT. EPCRA 009.

203. EPCRA § 322, 42 U.S.C. § 11042, ELR STAT. EPCRA 009.

204. The chemical identity includes the chemical name and other specific identification.

205. EPCRA § 322(a)(1)(A), 42 U.S.C. § 11042(a)(1)(A), ELR STAT. EPCRA 009.

206. EPCRA § 322(a)(2)(A), 42 U.S.C. § 11042(a)(2)(A), ELR STAT. EPCRA 009.

207. EPCRA § 325(c)(2), 42 U.S.C. § 11045(c)(2), ELR STAT. EPCRA 011.

208. EPCRA § 322(a)(3), 42 U.S.C. § 11042(a)(3).

209. EPCRA § 322(d)(1), 42 U.S.C. § 11042(d)(1), ELR STAT. EPCRA 009. EPA may, in the absence of a petition, initiate a review on its own motion.

210. EPCRA § 326(a)(1)(B)(vi), 42 U.S.C. § 11046(a)(1)(B)(vi), ELR STAT. EPCRA 011.

211. EPCRA § 322(d)(2), 42 U.S.C. § 11042(d)(2), ELR STAT. EPCRA 009.

212. EPCRA § 322(d)(3)(A), 42 U.S.C. § 11042(d)(3)(A), ELR STAT. EPCRA 009.

213. EPCRA § 322(d)(3)(B), 42 U.S.C. § 11042(d)(3)(B), ELR STAT. EPCRA 009.

214. Id.

215. EPCRA § 322(d)(3)(C), 42 U.S.C. § 11042(d)(3)(C), ELR STAT. EPCRA 009.

216. EPCRA § 322(d)(3)(C), 42 U.S.C. § 11042(d)(3)(C).

217. Id.

218. EPCRA § 322(d)(4), 42 U.S.C. § 11042(d)(4), ELR STAT. EPCRA 009.

219. EPCRA § 322(d)(4)(B), (C), 42 U.S.C. § 11042(d)(4)(B), (C), ELR STAT. EPCRA 009.

220. EPCRA § 325(d)(1)(A)(i), 42 U.S.C. § 11045(d)(1)(A)(i), ELR STAT. EPCRA 011.

221. EPCRA § 325(d)(1)(A)(ii), 42 U.S.C. § 11045(d)(1)(A)(ii), ELR STAT. EPCRA 011.

222. EPCRA § 325(d)(1)(B), 42 U.S.C. § 11045(d)(1)(B), ELR STAT. EPCRA 011.

223. EPCRA § 322(e), 42 U.S.C. § 11042(e).

224. EPCRA § 322(f), 42 U.S.C. § 11042(f).

225. 18 U.S.C. § 1905 protects from disclosure "trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association." A violation of this provision by any officer or employee of the United States subjects the violator to a fine of up to $1,000, imprisonment for up to one year and the loss of his office or employment with the government. Id.

226. EPCRA § 322(f), 42 U.S.C. § 11042(f), ELR STAT. EPCRA 009.

227. EPCRA § 322(g), 42 U.S.C. § 11042(g), ELR STAT. EPCRA 010.

228. EPCRA § 322(a)(2)(A)(iii), 42 U.S.C. § 11042(a)(2)(A)(iii), ELR STAT. EPCRA 009.

229. EPCRA § 326(a)(2)(C), 42 U.S.C. § 11046(a)(2)(C), ELR STAT. EPCRA 011.

230. EPCRA § 322(h)(1), 42 U.S.C. § 11042(h)(1), ELR STAT. EPCRA 010.

231. Id.

232. EPCRA § 322(h)(2), 42 U.S.C. § 11042(h)(2), ELR STAT. EPCRA 010.

233. Id.

234. EPCRA § 322(i), 42 U.S.C. § 11042(i), ELR STAT. EPCRA 010.

235. EPCRA § 325(d)(2), 42 U.S.C. § 11045(d)(2), ELR STAT. EPCRA 011.

236. 52 Fed. Reg. 38312 (Oct. 15, 1987). The proposed rule may be used as guidance until EPA issues the final rules scheduled for release in May 1988.

237. EPA drew upon the common law concept in the Restatement of Torts § 757 and the OSHA Hazard Communication Standard, 20 C.F.R. § 1910.1200 as ordered by the Court ruling in United Steelworkers of America v. Auchter, 763 F.2d 728, 15 ELR 20545 (3d Cir. 1985); See 52 Fed. Reg. 38313 (Oct. 15, 1987).

238. 52 Fed. Reg. 38325 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.1).

239. Id.

240. 52 Fed. Reg. 38314 (Oct. 15, 1987).

241. 52 Fed. Reg. 35316 (Oct. 15, 1987).

242. 52 Fed. Reg. 38331-35 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.27).

243. 52 Fed. Reg. 38327, 38331 (Oct. 15, 1987) (to be codified at 40 C.F.R. §§ 350.7 and 350.27).

244. 52 Fed. Reg. 38327 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.7). The substantiation questions are as follows:

(1) Describe the specific measures you have taken to safeguard the confidentiality of the chemical identity claimed as a trade secret.

(2) Have you disclosed this chemical identity to any person not an employee of your company or of a local, state or Federal government entity, who has not signed a confidentiality agreement requiring the person to refrain from disclosing the chemical identity to others?

(3) List all local, state and Federal government entities to which you have disclosed the specific chemical identity. For each, indicate whether you asserted a confidentiality claim for the chemical identity and whether the government entity denied that claim.

(4) In order to show the validity of a trade secrecy claim, you must identify your specific use of the substance claimed as a trade secret and explain why it is a secret of interest to competitors. Therefore:

(i) Describe the specific use of the chemical substance, identifying the product or process in which it is used.

(ii) Has your company or facility identity been linked to the specific chemical identity of the substance in publications or other information available to the public Is this linkage known to your competitors? If the answer to either question is yes, explain why this knowledge does not eliminate the justification for trade secrecy.

(iii) If this use of the substance is unknown outside your company, explain how your competitors could deduce this use from disclosure of the chemical identity, together with other information on the Title III submittal form.

(iv) Explain why your use of the substance would be valuable information to your competitors.

(5) Indicate the nature of the harm to your competitive position that would likely result from disclosure of the specific chemical identity, including an estimate of the potential loss in sales or profitability.

(6) To what extent is the substance available to the public or your competitors in products, articles, or environmental releases? Describe the factors which influence the cost of determining the identity of the substance by chemical analysis of the product, article, or waste which contains the substance, and provide a rough estimate of that cost.

(7) Is the substance, or use of it, subject to any U.S. Patent of which you are aware? If so, identify the patent and explain why:

(i) It does not connect you with the substance; and

(ii) Why it does not protect you from competitive harm.

Id.

245. 52 Fed. Reg. 38327 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.7(c)).

246. The petition procedures apply to chemical identity information only. For persons seeking access to information other than chemical identity which are claimed as trade secrets or confidential and are a part of Title III submissions, these requests for disclosure must be made pursuant to EPA's Freedom of Information Act regulations under 40 C.F.R. § 2. See 52 Fed. Reg. 38318, 19 (Oct. 15, 1987).

247. 52 Fed. Reg. 38330 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.15).

248. 52 Fed. Reg. 38329 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.13(a)(1)).

249. 52 Fed. Reg. 38329 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.13(a)).

250. 52 Fed. Reg. 38328 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.11(a)(2)).

251. 52 Fed. Reg. 38329 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.11(a)(2)(iii)).

252. 52 Fed. Reg. 38329 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.11(a)).

253. 42 U.S.C. § 11042(g).

254. 52 Fed. Reg. 3831 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.19).

255. EPCRA § 323, 42 U.S.C. § 11043.

256. EPCRA § 323(a), 42 U.S.C. § 11043(a), ELR STAT. EPCRA 010.

257. Id.

258. Id.

259. Id.

260. EPCRA § 323(b), 42 U.S.C. § 11043(b), ELR STAT. EPCRA 010.

261. Id.

262. Id.

263. EPCRA § 325(c)(2), 42 U.S.C. § 11045(c)(2), ELR STAT. EPCRA 011.

264. EPCRA § 323(c), 42 U.S.C. § 11043(c), ELR STAT. EPCRA 010.

265. EPCRA § 325(e), 42 U.S.C. § 11045(e), ELR STAT. EPCRA 011.

266. EPCRA § 323(e), 42 U.S.C. § 11043(e), ELR STAT. EPCRA 010.

267. 52 Fed. Reg. 38312 (Oct. 15, 1987).

268. 52 Fed. Reg. 38336 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.40(a)). The term "medical emergency" means:

any unforeseen condition which a health professional would judge to require urgent and unscheduled medical attention. Such condition is one which results in sudden and/or serious symptom(s) constituting a threat to a person's physical or psychological well being and which requires immediate medical attention to prevent possible deterioration, disability or death.

269. 52 Fed. Reg. 38322 (Oct. 15, 1987).

270. 52 Fed. Reg. 38336 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.40(c)).

271. 52 Fed. Reg. 38336 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.40(c)(3)).

272. 52 Fed. Reg. 38336 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.40(f)).

273. 52 Fed. Reg. 38336 (Oct. 15, 1987) (to be codified at 40 C.F.R. § 350.40(f)(3)). EPA believes that a penalty bond requirement would have a "chilling effect" on the health professional community and that the purpose of confidentiality agreement is to protect a facility's trade secret chemical identity from unlimited and unbridled disclosure, not to make it overly burdensome to obtain the specific identity of a chemical. See 52 Fed. Reg.38322 (Oct. 15, 1987).

274. EPCRA § 324(a), 42 U.S.C. § 11044(a), ELR STAT. EPCRA 010.

275. Id.

276. EPCRA § 326(a)(1)(C), 42 U.S.C. § 11046(a)(1)(C), ELR STAT. EPCRA 011.

277. EPCRA § 324(b), 42 U.S.C. § 11044(b), ELR STAT. EPCRA 010.

278. EPCRA § 325, 42 U.S.C. § 11045, ELR STAT. EPCRA 010. The individual enforcement provisions are discussed throughout this article as they relate to each individual provision of EPCRA.

279. EPCRA § 325(b)(4), 42 U.S.C. § 11045(b)(4), ELR STAT. EPCRA 010.

280. EPCRA § 325(d)(2), 42 U.S.C. § 11045(d)(2), ELR STAT. EPCRA 011.

281. EPCRA § 325(e), 42 U.S.C. § 11045(e), ELR STAT. EPCRA 011.

282. EPCRA § 325(f), 42 U.S.C. § 11045(f), ELR STAT. EPCRA 011.

283. 52 Fed. Reg. 13393 (Apr. 22, 1987).

284. EPCRA § 326, 42 U.S.C. § 11046, ELR STAT. EPCRA 011. The individual civil suit provisions are discussed throughout this article as each provision relates to a particular provision of EPCRA.

285. EPCRA § 329(7), 42 U.S.C. § 11049(7), ELR STAT. EPCRA 012.

286. EPCRA § 326(a)(1)(A), 42 U.S.C. § 11046(a)(1)(A), ELR STAT. EPCRA 011.

287. EPCRA § 326(a)(1)(B), 42 U.S.C. § 11046(a)(1)(B), ELR STAT. EPCRA 011.

288. EPCRA § 326(a)(1)(C), 42 U.S.C. § 11046(a)(1)(C), ELR STAT. EPCRA 011.

289. EPCRA § 326(a)(1)(D), 42 U.S.C. § 11046(a)(1)(D), ELR STAT. EPCRA 011.

290. EPCRA § 326(a)(2)(A), 42 U.S.C. § 11046(a)(2)(A), ELR STAT. EPCRA 011.

291. EPCRA § 326(a)(2)(C), 42 U.S.C. § 11046(a)(2)(C), ELR STAT. EPCRA 011.

292. EPCRA § 326(a)(2)(B), 42 U.S.C. § 11046(a)(2)(B), ELR STAT. EPCRA 011.

293. EPCRA § 326(b), 42 U.S.C. § 11046(b), ELR STAT. EPCRA 012.

294. EPCRA § 326(d), 42 U.S.C. § 11046(d), ELR STAT. EPCRA 012.

295. Id.

296. EPCRA § 326(e), 42 U.S.C. § 11046(e), ELR STAT. EPCRA 012.

297. EPCRA § 326(h)(1), 42 U.S.C. § 11046(h)(1), ELR STAT. EPCRA 012.

298. EPCRA § 326(h)(2), 42 U.S.C. § 11046(h)(2), ELR STAT. EPCRA 012.

299. EPCRA § 326(c), 42 U.S.C. § 11046(c), ELR STAT. EPCRA 012.

300. EPCRA § 325, 42 U.S.C. § 11045, ELR STAT. EPCRA 010.

301. EPCRA § 326(f), 42 U.S.C. § 11046(f), ELR STAT. EPCRA 012.

302. EPCRA § 327, 42 U.S.C. § 11047, ELR STAT. EPCRA 012.

303. Consistent with the Hazardous Materials Transportation Act, the exemption for storage incident to transportation is "limited to the storage of materials which are still moving under active shipping papers and have not reached the ultimate consignee." H.R. CONF. REP. NO. 96, 99th Cong., 2d Sess. 292, reprinted in 1988 U.S. CODE CONG. & ADMIN. NEWS 3404.

304. EPCRA § 327, 42 U.S.C. § 11047, ELR STAT. EPCRA 012.

305. EPCRA §§ 311(a)(1)(2), 42 U.S.C. §§ 11021(a)(1)(2), ELR STAT. EPCRA 005; EPCRA § 312(a), 42 U.S.C. § 11022(a), ELR STAT. EPCRA 005.

306. 42 U.S.C. § 11049(6), ELR STAT. EPCRA 012. 29 C.F.R. § 1910.1200(g) requires that material safety data sheets must contain the chemical and common name of the substance, its physical and chemical characteristics, its physical and/or health hazards, primary routes or entry, permissible exposure limits, precautions for safe handling, control measures, emergency and first aid procedures, etc.

307. EPCRA § 322(b)(4), 42 U.S.C. § 11042(b)(4), ELR STAT. EPCRA 009.

308. EPCRA § 322(c); 42 U.S.C. § 11042(3), ELR STAT. EPCRA 009.

309. 48 Fed. Reg. 53280 (Nov. 25, 1983).

310. OSH Act § 6(b)(7), 29 U.S.C. § 665(b)(7).

311. 29 C.F.R. § 1910.1200(e).

312. 29 C.F.R. § 1910.1200(g).

313. 29 C.F.R. § 1910.1200(f).

314. United Steel Workers of America v. Auchter, 763 F.2d 728, 15 ELR 20545 (3d Cir. 1985).

315. Additional stimulus for OSHA's decisionmaking was the return of the Auchter petitioners to Court on January 27, 1987, for filing a Motion which produced an Order from the Third Circuit on May 29, 1987, requiring OSHA to issue, within 60 days, a Hazard Communication Standard applicable to all workers covered by the OSHA including those which have not been covered in the Hazard Communication Standard as presently written or a statement of reasons why, on the basis of the present administrative record, a Hazard Communication Standard is not feasible. United Steel Workers of America, AFL-CIO-CLC v. Pendergrass, No. 83-3554 (3d Cir.).

316. 52 Fed. Reg. 31852, 31886 (Aug. 24, 1987).

317. 52 Fed. Reg. 31870, 31871 (Aug. 24, 1987).

18 ELR 10007 | Environmental Law Reporter | copyright © 1988 | All rights reserved