Precast plants are required to report annually on hazardous materials when they exceed specific thresholds.
By Doug Ruhlin
One doesn’t typically think of a precast concrete manufacturing plant as a storehouse for hazardous or toxic materials. The truth, however, is that all precast plants have them, and many may be required to disclose their storage and use to local, state and federal government agencies. In fact, failure to do so can, and has, resulted in significant penalties.
The Federal Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) requires that all facilities (including precast concrete plants) report the processing, use or manufacture of hazardous chemicals and certain listed toxic chemicals (a subset of hazardous chemicals) if that processing, use or manufacture exceeds certain regulatory thresholds.
Federal regulations requiring this reporting fall primarily under sections 311-312 (for hazardous materials) and section 313 (for toxic chemicals and their releases to the environment) of the Act. These annual reports to the U.S. Environmental Protection Agency (EPA) are also required to be sent to certain state emergency response commissions (SERCs) and local emergency planning commissions (LEPCs), and some states may have their own similar or additional chemical reporting requirements.
Cause and effect
The background behind these regulations was meant to help communities plan for emergencies involving hazardous substances, and to help increase the public’s knowledge and access to information about chemicals at individual facilities, their uses and release to the environment. The Act was passed in part due to the tragic industrial disaster in Bhopal, India, when an accidental release of an extremely toxic chemical escaped from a chemical plant and resulted in thousands of deaths. This event and another one later in the United States raised concerns about local preparedness for chemical emergencies and the availability of information on hazardous chemicals.
The EPCRA regulations require that facilities report – on an annual basis – hazardous and toxic chemicals in excess of certain reporting thresholds. The two primary types of Federal EPCRA reporting, discussed later, are:
• Emergency and Hazardous Chemical Inventory Forms (Tier II Reporting) – Requires annual reporting of the presence, use, processing or manufacture of any chemical at a facility that is deemed hazardous by OSHA and which is required to maintain a material safety data sheet (MSDS), and which exceeds the reporting threshold of 10,000 lbs for most chemicals.
• Toxic Release Inventory (TRI) Reporting – Requires annual reporting of the manufacture, processing or other use of any hazardous chemical that has been identified by USEPA as being toxic, and which exceeds the reporting threshold of 25,000 lbs for most toxic chemicals (for manufacture or process, or 10,000 lbs for other use). For certain toxic chemicals, identified as PBT chemicals (persistent bioaccumulative toxic chemicals), the reporting threshold can be much lower, such as 100 lbs for lead and 10 lbs for mercury.
EPCRA Tier II reporting/Community Right to Know reporting
EPCRA sections 311-312 require annual reporting of the presence, use, processing or manufacture of any chemical at a facility that is deemed hazardous by OSHA and exceeds the reporting threshold of 10,000 lbs, 75,000 gallons for gasoline, 100,000 gallons for diesel fuel, and lower quantities for substances listed as extremely hazardous. This type of reporting is usually required to be made to SERC, the LEPC and possibly other local agencies such as your local fire department (which may also be the LEPC).
Here is a simple determination of whether a chemical or material is hazardous and subject to reporting: Is there an MSDS (material safety data sheet) for the chemical as required by the OSHA Haz Comm standard?1 If so, then this chemical or material is subject to the reporting requirement if the facility has used, processed or manufactured more than 10,000 lbs of the hazardous material or chemical (with the above-referenced exceptions for fuels and extremely hazardous substances). This type of reporting is often called “Tier II” reporting due to the name of the EPA Tier II reporting form, or “Community Right-to-Know” or CRTK reporting.
What sorts of chemicals or materials might commonly be reported for a precast concrete plant? A great place to start is with your MSDS listing (which is hopefully current and complete, including MSDSs for all hazardous chemicals and materials at the plant). All industrial facilities should review their MSDSs and their material use records annually for Tier II reporting applicability and compare it against the 10,000-lb threshold. Materials at a precast concrete plant that might require Tier II reporting may include diesel fuel, gasoline, concrete chemical admixtures, cement, fly ash, slag cement, sand and perhaps stone, concrete itself and more.
Typically, Tier II reporting is done electronically, and in most states, copies of the reports must be submitted to the EPA with copies forwarded to the SERC and LEPC. However, in some states, these reports may be required to be made directly to the EPA, SERC and LEPC.
TRI/Form R reporting
EPCRA regulations also require that facilities annually report the manufacture, processing or other use of toxic chemicals in excess of reporting thresholds, typically 25,000 lbs for manufacture or processing, or 10,000 lbs for other use. For certain toxic chemicals, identified as PBT chemicals, the reporting threshold can be much lower, such as 100 lbs for lead and 10 lbs for mercury. There are a few additional important restrictions such as SIC/NAICS2 code and employee hours worked (which may exempt closed precast plants), although these restrictions are not typically relevant at most precast concrete facilities.
Like Tier II reporting, TRI reporting is made to the USEPA, SERC and LEPC. Also like Tier II reporting, some states may have similar or additional requirements that may also exceed the scope of the federal requirements.
TRI reporting requires an annual report of how much each chemical has been managed through recycling, energy recovery, treatment and environmental releases during the previous calendar year. The reporting is also referred to as Form R reporting because of the name of the USEPA reporting form.
What might commonly be required to be reported at a precast concrete plant?
• TRI/Form R reporting is for a subset of hazardous chemicals, those that are toxic and are present on a listing generated by the EPA. At precast concrete facilities, potential reporting triggers might be the presence of nitrates in certain concrete admixtures (they must be >1% of the mixture). Depending upon the volume present in the admixture, it might take only a few thousand gallons used at your plant over a year’s time to trigger the need for TRI/Form R reporting due to the presence of more than 25,000 lbs. Determine where you stand by checking your MSDS for all your products you use at your plant, check the contents against the TRI list, and then calculate whether you exceed the reporting thresholds.
• Additional reporting may be required for chemicals such as lead and mercury in cement, fly ash and slag cements. These PBT chemicals have no minimum concentrations (such as the 1% concentration identified above for non-PBT chemicals), and may not appear as a listed component of materials such as cement, fly ash and slag cement. However, should their total use at the precast concrete plant exceed the reporting thresholds, they should be reported. If you are unsure about the concentration of toxic chemicals, other means may be required to estimate or confirm the concentration, such as requesting compositional data from the supplier or getting independent chemical analyses.
TRI/Form R reporting requires two steps. First is determining whether to report in the first place, followed by evaluating the release of the toxic chemical to the environment. While this can be complex, it is often based on standard emission or discharge factors, which can be used to provide an estimation of potential releases to the environment, rather than the need for more elaborate release or discharge monitoring or modeling. Exceeding the reporting thresholds is based on the volume you process at your plant, not the amount you release. Depending on your process, it may be possible that releases to the environment may be very minimal, or that there may not be any release to the environment at all. In that circumstance, it is important to note that the precast plant is still required to report.
It should also be recognized that nearly all NPDES stormwater discharge permits issued in the United States require the identification of the presence and handling of TRI chemicals (usually identified in the NPDES permit as Section 313 chemicals). Failure to identify the presence of these chemicals not only may result in a reporting violation, but could also trigger a lack of compliance with your NPDES stormwater permit.
Tier II and TRI reporting are not the same. They have different chemicals, reporting criteria, deadlines and reporting processes. Doing one type of reporting does not eliminate the need for the other. Also, failure to perform either or both of these required types of chemical reporting may carry significant monetary penalties.
If you determine that your precast concrete plant may have been required to report in the past yet failed to do so, or that previously submitted reports may have been incomplete, you should consult with qualified legal or technical counsel. It may be possible to consider using the EPA Audit Policy for self-reporting of past potential violations in order to avoid liability or penalty. However, this route includes restrictions (including being time-sensitive after discovery of a potential violation) and may not avoid state-specific penalties. If an outside party discovers (such as during an inspection by the EPA) that you haven’t been reporting and if you are found to be in violation, the penalties can be severe, including significant monetary penalties from the EPA.3
Chemical use reporting at precast concrete plants is not difficult, and should not be avoided if required. Like all other aspects of environmental regulations, being in compliance is far preferable to being out of compliance.
Doug Ruhlin is an environmental/sustainability consultant with Resource Management Associates, which provides consulting services to the concrete and construction materials industries throughout the United States and internationally. View his website at www.RMAgreen.com, or contact him at [email protected] or (609) 693-8301.
1 See the article “GHS: A New World Order for Safety” on page 10 in this issue for a discussion of the Globally Harmonized System (GHS) that will replace the MSDS requirement later this year for labeling hazardous materials.
2 SIC stands for Standard Industrial Classification; NAICS stands for North American Industrial Classification System
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