Recently EPA sent email reminder notices to companies who submitted 2018 and 2019 Toxic Release Inventories under EPCRA Section 313.  These reminders were about the regulation’s annual supplier chemical notification requirements for those companies who process or manufacture chemicals or chemical mixtures.

This annual notifications rule can be found at 40 CFR § 372.45.

Who Does This Affect?

1. SIC codes 20-39 (or NAICS codes corresponding to those SIC categories), and…
2. You manufacture (including import) or process a toxic chemical on the EPCRA Section 313 list, then…
3. You sell/distribute that chemical under a trade name, or sell/distribute a mixture containing one or more of these chemicals.

Suppliers who are not required to complete a Toxic Release Inventory can still qualify for this rule.  They would still need to notify if they meet those 3 criteria.

The Notification

An annual notification must be sent with the first shipment of the chemical sent within the calendar year.  The notice needs to include the following information:

• A statement that the mixture or trade name product includes a toxic chemical listed pursuant to EPCRA section 313 or 40 CFR Part 372;
• The name and, if applicable, associated CAS registry number of each listed chemical, and;
• The percentage by weight of each listed chemical in the mixture or trade name product.

The chemical notification can be a letter, a label or a written notice within the shipping papers.  It may accompany and be attached to the product’s SDS, but an SDS alone will not suffice if the SDS is missing the required notification information.  If your SDS has the required information on it, that can be used for the first shipment.  Then in subsequent years, a letter referencing the previous year’s SDS would suffice as long as the customer still has the most current version of your SDS.  If an SDS is not required for your chemical, you can send the notification on a separate written notice.

If you have any changes or updates to the information for the notice, you need to send out a revised notice within 30 days of that change.  If find that you had errors in your notice, you’ll need to send a revised notice listing the shipment dates that the new correct data would cover.

Exclusions

There are a few exclusions to this rule, including:

• Not falling within those specific SIC/NAICS codes.
• The chemical is a result of a chemical reaction from two or more chemicals mixed. You do not have to notify in this case because it would not be considered a mixture anymore.
• If the chemical is prepared for consumer use, you don’t have to notify. However, if you prepare a version for consumer use in one type of packaging, but provide an industrial version in a different quantity or packaging, then you would have to notify.
• The quantity of the toxic chemical is below the de minimis level (1% or 0.1% for OSHA carcinogens).
• It’s a waste.

If your company does not fall within the SIC/NAICS codes or you just repackage the chemicals (not manufacture them), and you receive notifications from your suppliers, you should forward on those chemical notifications with the EPCRA Section 313 chemicals you send to users who would be covered under these codes.

Recordkeeping

You’re required to keep the following records for 3 years:

• Notifications sent to recipients;
• All supporting materials used to develop the notice;
• If you are claiming a trade secret, a record of why it’s considered a secret and why the generic name you can use in your notification is appropriate; and,
• If the concentration is a trade secret, record explanations of why it’s a secret and the basis for the upper bound concentration limit you’re allowed to use is appropriate.

More Information

More information can be found in the rule and in EPA’s Frequently Asked Questions about this rule.

​EPA has issued air permitting updates in order to help companies save time and reduce paperwork and compliance burdens.

Air Permitting Update:  Definition of Adjacent Areas

As we first reported here last fall, EPA was considering changing the interpretation of the word “adjacent” for its EPA Title V air permit and New Source Review (NSR) air permits for new construction or modifications.  That interpretation change is now final.

In the regulations, the word adjacent comes into play when determining if a facility qualifies for permits.  When determining sources, a building, structure, facility or installation must be under the control of the same person, belong in the same industrial grouping, and located on one or more contiguous or adjacent properties.  When it came to “adjacent”, EPA had been also considering “functional interrelatedness,” that is, grouping together facilities with similar functions, even if they were miles apart.

According to the new rule, for all industries other than oil and natural gas production and processing, adjacent is physical proximity only.  EPA makes additional comments on the word “contiguous” as well, noting the difference between adjacent and contiguous.  Operations do not have to be contiguous to be adjacent.  That is, operations that do not share a common boundary or border, not physically touching each other will be adjacent if the operations are nearby.  If there is proximity (neighboring or side-by-side operations where the “common sense notion of a plant” can be deduced) that will be considered adjacent.  Railways, pipelines and other conveyances will not determine adjacency.

Please note that states with their own air permitting programs aren’t required to follow the new interpretation, so be aware of the regulations in your own state.

More information about EPA’s change can be found here.

Air Permitting Update:  Revised Exclusions for Ambient Air

EPA has broadened the exclusions industrial facilities can take from the ambient air regulations.

The Clean Air Act sets standards that affect ambient air quality, that is, that portion of the atmosphere, external to buildings, to which the general public has access.  In the air permitting process, companies are required to make air quality analyses of how their operations, (or changes to operations) will affect the ambient air quality.  Within that requirement, there’s been an exclusion for areas that the public didn’t have access to.  That is, you didn’t have to count the effects to the air quality of the areas of your facility that the public didn’t have access to as long as your company owned or controlled that area.

Until now, fences and other physical barriers have been the determining factor on public access.

In the updated regulations, EPA is allowing for other types of measures to which deter public access.  Some examples could include:

• Signage
• Security Patrols
• Remote Surveillance Cameras
• Drones
• Natural Barriers Such as Cliffs or Rugged Terrain (case-by-case basis)

Your company will still need to have the legal authority to prevent the public from going onto that property.  Please note that in this case as well, states with their own air permitting programs aren’t required to follow the new interpretation, so be aware of the regulations in your own state.

For more information, check out the EPA’s guidance page here.

EPA has proposed a rule that would officially eliminate the air regulations rule of “Once In, Always In” for major source hazardous air pollutant (HAP) emissions.  As a result, EPA is estimating reduced regulatory burden for thousands of locations, and thousands of others could now have a better incentive to reduce air emissions.

Background: Air Emissions Regs

Locations that emit one or more of the 187 named hazardous air pollutants above a certain threshold are classified as a “major source.”  As a result, they become subject to a number of additional regulatory obligations.  They are required to follow certain rules established by their related Maximum Achievable Control Technology (MACT) rules and are required to complete annual Title V Air Emissions permitting. 

If locations have HAP air emissions below the stated threshold, they are classified as “area sources.”  The regulatory requirements at this level are much less burdensome.

What’s Once In, Always In?

EPA’s Once In, Always In policy stated that once a location reaches that major source classification, they were always going to be a major source, not matter what – even if the company took steps to reduce emissions below that threshold.  It was developed in 1995 as a guidance memo and originally intended to only be in place until the agency could propose amendments, but it stayed in permanently. 

As part of the 2017 Executive Order for agencies to review and reduce regulations, EPA looked at Once In, Always In.  They determined the Clean Air Act really did not specify or support time limits.  As a result, EPA issued its own interpretation memo saying there was no basis for major sources to have that classification permanently.  These sources should have the ability to reclassify as area sources if they implemented the controls and reductions necessary to become area sources.

This new proposed rule is the formal step to make this interpretation final.

The Benefits

This rule will benefit companies that have already implemented technologies to control HAP emissions, and companies whose processes or operations have changed to the degree that they no longer emit or have the capabilities to emit HAPs above the thresholds. 

EPA estimates that out of 7,920 major sources, approximately half will now be eligible to reclassify as an area source.  Besides the lessened compliance burden, EPA estimates costs savings of $168.9 million in the first year, and $163-$183 million each year after.

Those companies who are still major sources will also now have a concrete incentive to make changes to operations that would further reduce HAP emissions.

Public Comment

Find out more information about this rule here.  EPA is also soliciting public comment at regulations.gov.  They want to hear about all aspects of their proposal including their interpretation of Once In, Always In, requirements for establishing effective HAP limits, allowing limits issued by states/local/tribal agencies as effective as long as they are legally and practically enforceable, and ideas for safeguards to ensure emissions are not increased.