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The Emergency Planning and Community Right-to-Know Act ("EPCRA") was enacted in 1986 as Title III to the Superfund Amendments and Reauthorization Act ("SARA Title III"). The legislation was passed in the wake of a catastrophic toxic chemical release at an industrial facility in Bhopal, India, which killed or injured thousands of people in the surrounding community.

EPCRA and its implementing regulations require owners and operators of facilities that store, use, or release hazardous chemicals in excess of threshold quantities to report information on those substances to federal, state, and local emergency planning and response agencies. The federal program, partially implemented (and sometimes made more stringent) by state and/or local legislation, aims to prevent chemical disasters by collecting and disseminating facility chemical handling and release information for two purposes: (1) to provide governmental agencies with data to develop facility-specific emergency response plans, and (2) to alert the public regarding potentially hazardous chemicals in their neighborhoods.

MGKF has advised our clients on all aspects of EPCRA compliance, including annual Tier 2 hazardous chemical inventory reporting and Form R reporting for the U.S. Environmental Protection Agency ("EPA") Toxic Release Inventory ("TRI") database, coordination with local emergency planning committees ("LEPCs"), and emergency release notifications.

TRI and Tier 2 Reporting, LEPC Coordination: Our lawyers and in-house technical consultants have extensive experience evaluating clients' TRI reporting obligations, which relate to the processing, manufacturing, or use of toxic chemicals at certain industrial facilities. We understand the sometimes difficult issues in determining threshold reporting quantities, including the use of toxic chemicals in mixtures and manufactured articles. Where TRI requirements apply, we have assisted clients to accurately and effectively report toxic chemical release information. MGKF has also defended and successfully resolved EPA administrative penalty actions alleging failure to comply with TRI reporting. We apply the same legal and technical skills to help clients evaluate and comply with annual Tier 2 hazardous chemical inventory reporting obligations, which affect a broader array of businesses. Also, where hazardous chemicals trigger emergency planning obligations, we have counseled clients on responding to LEPC information requests for county emergency plans.

Emergency Release Notifications: Our industrial clients must frequently evaluate the applicability of emergency release notification requirements under EPCRA section 304 and section 103 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"). MGKF has counseled clients in the event of spills or other emergencies to determine whether reports to the National Response Center, and to local and state agencies, are required under law. Where required, we have assisted clients in gathering appropriate information for initial verbal notices and for follow-up correspondence with agencies and the public. We have also represented clients in EPA penalty actions involving emergency release notification requirements. Related MGKF practice areas include spill planning and emergency planning and response.


Photo ©2013 Avi Loren Fox Photography

Representative EPCRA matters in which our firm has counseled clients include the following:

  • MGKF has represented chemical manufacturing companies in EPA enforcement actions relating to the release of an extremely hazardous chemical from the client's facility, and compliance with TRI Form R reporting. The firm assisted in settling these matters favorably after negotiations with EPA Region 3.
  • During a multi-media voluntary environmental audit, we assisted a telecommunications company in determining whether Tier 2 reporting violations had occurred at hundreds of facilities nationwide. In certain instances, the evaluation involved complex legal questions, such as evaluating the reporting obligations of multiple companies located at the same facility. We worked with the client to return facilities to compliance for prior missing Tier 2 reports, assembled information for LEPC emergency planning submissions, and negotiated a significantly reduced penalty with EPA headquarters as part of a voluntary disclosure under the agency's audit policy. To prevent future noncompliance, MGKF prepared a comprehensive internal guidance document for the client on both general and state-specific EPCRA reporting obligations, and presented training sessions to client personnel.
  • MGKF represented a large auto body manufacturer in a threatened EPA enforcement action involving TRI reporting. The matter required developing an intimate knowledge of the client's manufacturing process, raw material inventory management and tracking, and evaluating the applicability of TRI reporting exemptions for low-threshold compounds. We assisted the client in successfully identifying reporting exemptions and obtaining EPA's concurrence not to pursue enforcement.
  • The firm successfully defended a chemical company whose accidental chemical release triggered an EPA investigation into the client's EPCRA compliance and release reporting procedures. We assisted the client in preparing for EPA's on-site inspection and responding to EPA's investigation of the spill event. EPA did not issue any penalties or take further enforcement action against the client. We subsequently worked with the client to enhance its spill planning, response, and reporting procedures.
  • MGKF assisted a manufacturing client in applying TRI Form R thresholds and utilizing mixture calculations that involve concentration ranges straddling the de minimus value to show that no TRI report needed to be submitted.
  • We negotiated a favorable settlement with Region 4 EPA on behalf of a manufacturing client that had neglected to submit Form Rs for a number of years.

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