Do you have to file Tier II? Two questions decide it

This page explains what the rules and common practice call for. Every site is different, and what a survey or a filing needs at your facility is something we work out with you after we see it.

Two questions decide it. Does OSHA require you to keep safety data sheets, and did any chemical on site reach its threshold at any point in the year?

Tier II is the annual chemical inventory report required by sections 311 and 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA). It covers the previous calendar year, it is due March 1, and it goes to the state, the local emergency planning committee (LEPC) and the fire department.

Unlike Form R, there is no employee count and no industry test. A warehouse, a hospital, a school district bus yard and a machine shop can all owe it. What matters is what you store and how much of it was there at once.

Question 1: Do you keep safety data sheets?

If OSHA's hazard communication standard requires your facility to have a safety data sheet (SDS) for a chemical, that chemical is a hazardous chemical for Tier II purposes. Nearly every employer with chemicals on site meets this test. Arizona runs its own OSHA program through ADOSH, the state OSHA plan, and the same rule applies.

Question 2: Did a chemical reach its threshold?

The test is the maximum amount present at any one time during the calendar year, in pounds. It is not annual usage and it is not an average. One delivery that briefly pushed stock over the line is enough.

Extremely hazardous substances are the chemicals on EPA's emergency planning list, and each one has a threshold planning quantity, the amount EPA set for emergency planning. Where that quantity is below 500 pounds, it becomes the Tier II threshold. Where it is 500 pounds or more, 500 pounds is the threshold. Check the current list, because EPA revises it.

The gas station thresholds apply only to a retail station that sells to the public, with the fuel stored in tanks that are entirely underground and meet the underground storage tank rules. Fuel in an above-ground tank at a fleet yard or a plant is an ordinary hazardous chemical at 10,000 pounds, which is about 1,400 gallons of diesel.

The exemptions

EPCRA borrows its exemptions from the OSHA hazard communication standard. A substance is not a hazardous chemical for Tier II if it falls into one of these groups.

The exemptions are listed in the rule at 40 CFR 370.13, and they are narrower than they sound. Read each one against the actual use at your site, not the product category.

The case facilities miss most: lead-acid batteries

Sulfuric acid is an extremely hazardous substance with a threshold planning quantity of 1,000 pounds, so its Tier II threshold is 500 pounds. It is also the electrolyte in every lead-acid battery, and EPA has long held that batteries are not exempt as manufactured items because the acid can be released during charging and handling.

A single industrial forklift battery holds a surprising amount of electrolyte. A fleet of electric forklifts, a battery backup room or a bank of standby batteries can put a facility past 500 pounds of acid with no drum of acid anywhere on site. Count only the acid, not the water in the electrolyte, and get the figure from the battery manufacturer or the SDS. The lead in the batteries is a separate hazardous chemical at the 10,000 pound threshold, and a large fleet can reach that too.

Diesel in a standby generator tank, propane in a cylinder cage, refrigeration ammonia and compressed gases in a cylinder rack are the other quantities people walk past every day.

Mixtures

For an ordinary hazardous chemical in a mixture, you may count and report the mixture itself, or count the hazardous components, as long as you do it the same way every time. Most facilities report the product as it appears on the SDS.

For an extremely hazardous substance, add up its weight across every mixture and pure product that contains it, and compare the total with the EHS threshold. A diluted acid in several tanks is still one total for the site.

How to document a "no"

If you conclude that you do not have to file, write down why, because the question will come up again. A short file is enough, and it should hold:

• The chemical list you checked, with the date and who prepared it.
• The peak amount you found for each chemical that was anywhere near a threshold, and the records you used to find it.
• The EHS check, including batteries, with the acid weight and the source of that figure.
• Each exemption you relied on, and the specific reason it applies to your use.

Review it every year before March 1, since a new product, a bigger tank or a larger battery fleet can change the answer.

Where this usually goes wrong

1. Annual usage is used instead of the peak. A facility that uses 8,000 pounds a year, delivered in two 5,000 pound loads, can still be over 10,000 pounds on the day the second load lands on the remainder of the first.
2. Batteries are treated as articles. They are not, and the acid is an EHS.
3. Amounts are left in gallons. The thresholds are in pounds, and the conversion uses the density on the SDS.
4. An EHS is counted tank by tank rather than across the site.
5. The consumer product exemption is stretched to cover bulk quantities of a product that happens to be sold at retail.
6. Chemicals used only briefly are forgotten, such as a solvent brought in for a one-time cleaning job or a tank that was full only during a project.

If you are unsure about any of these, it is worth working through the inventory once, properly. It is the same inventory the fire department relies on, and it is what an inspector will ask for.

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