40 CFR Part 370 -- HAZARDOUS CHEMICAL REPORTING: COMMUNITY RIGHT-TO-KNOW

Subpart A -- General Provisions
Sec.
370.1 Purpose.
370.2 Definitions.
370.5 Penalties. Subpart B -- Reporting Requirements
370.20 Applicability.
370.21 MSDS reporting.
370.25 Inventory reporting.
370.28 Mixtures. Subpart C -- Public Access and Availability of Information
370.30 Requests for information.
370.31 Provision of information. Subpart D -- Inventory Forms
370.40 Tier I emergency and hazardous chemical inventory form.
370.41 Tier II emergency and hazardous chemical inventory form.


§370.1 Purpose.

These regulations establish reporting requirements which provide the public with important information on the hazardous chemicals in their communities for the purpose of enhancing community awareness of chemical hazards and facilitating development of State and local emergency response plans.


§370.2 Definitions.

Chief Executive Officer of the tribe means the person who is recognized by the Bureau of Indian Affairs as the chief elected administrative officer of the tribe.

Commission means the emergency response commission for the State in which the facility is located except where the facility is located in Indian Country, in which case, commission means the emergency response commission for the Tribe under whose jurisdiction the facility is located. In absence of an emergency response commission, the Governor and the chief executive officer, respectively, shall be the commission. Where there is a cooperative agreement between a State and a Tribe, the commission shall be the entity identified in the agreement.

Committee or local emergency planning committee means the local emergency planning committee appointed by the emergency response commission.

Environment includes water, air, and land and the interrelationship that exists among and between water, air, and land and all living things.

Extremely hazardous substance means a substance listed in the Appendices to 40 CFR Part 355, Emergency Planning and Notification.

Facility means all buildings, equipment, structure, and other stationary items that are located on a single site or on contiguous or sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person). Facility shall include manmade structures as well as all natural structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use. For purposes of emergency release notification, the term includes motor vehicles, rolling stock, and aircraft.

Hazard category means any of the following:

(1) Immediate (acute) health hazard, including highly toxic, toxic, irritant, sensitizer, corrosive, (as defined under §1910.1200 of Title 29 of the Code of Federal Regulations) and other hazardous chemicals that cause an adverse effect to a target organ and which effect usually occurs rapidly as a result of short term exposure and is of short duration;

(2) Delayed (chronic) health hazard, including carcinogens (as defined under §1910.1200 of Title 29 of the Code of Federal Regulations) and other hazardous chemicals that cause an adverse effect to a target organ and which effect generally occurs as a result of long term exposure and is of long duration;

(3) Fire hazard, including flammable, combustible liquid, pyrophoric, and oxidizer (as defined under §1910.1200 of Title 29 of the Code of Federal Regulations);

(4) Sudden release of pressure, including explosive and compressed gas (as defined under §1910.1200 of Title 29 of the Code of Federal Regulations); and

(5) Reactive, including unstable reactive, organic peroxide, and water reactive (as defined under §1910.1200 of Title 29 of the Code of Federal Regulations).

Hazardous chemical means any hazardous chemical as defined under §1910.1200(c) of Title 29 of the Code of Federal Regulations, except that such term does not include the following substances:

(1) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration.

(2) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use.

(3) Any substance to the extent it is used for personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public.

(4) Any substance to the extent it is used in a research laboratory or a hospital or other medical facility under the direct supervision of a technically qualified individual.

(5) Any substance to the extent it is used in routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.

Indian Country means Indian country as defined in 18 U.S.C. 1151. That section defines Indian country as:

(a) All land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;

(b) All dependent Indian communities within the border of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and

(c) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Indian tribe means those tribes federally recognized by the Secretary of the Interior.

Inventory form means the Tier I and Tier II emergency and hazardous chemical inventory forms set forth in subpart D of this part

Material Safety Data Sheet or MSDS means the sheet required to be developed under §1910.1200(g) of Title 29 of the Code of Federal Regulations.

Person means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of State, or interstate body.

Present in the same form and concentration as a product packaged for distribution and use by the general public means a substance packaged in a similar manner and present in the same concentration as the substance when packaged for use by the general public, whether or not it is intended for distribution to the general public or used for the same purpose as when it is packaged for use by the general public.

State means any State of United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, and any other territory or possession over which the United States has jurisdiction and Indian Country.

TPQ means the threshold planning quantity for an extremely hazardous substance as defined in 40 CFR Part 355.

(52 FR 38364, Oct. 15, 1987, as amended at 55 FR 30645, July 26, 1990)


§370.5 Penalties.

(a) MSDA reporting. Any person other than a governmental entity who violates any requirement of §370.21 shall be liable for civil and administrative penalties of not more than $10,000 for each violation.

(b) Inventory reporting. Any person other than a governmental entity who violates any requirement of §370.25 shall be liable for civil and administrative penalties of not more than $25,000 for each violation.

(c) Continuing violations. Each day a violation described in paragraph (a) or (b) of this section continues shall constitute a separate violation.


Subpart B -- Reporting Requirements

§370.20 Applicability.

(a) General. The requirements of this subpart apply to any facility that is required to prepare or have available a material safety data sheet (MSDS) for a hazardous chemical under the Occupational Safety and Health Act of 1970 and regulations promulgated under that Act.

(b) Minimum threshold levels. Except as provided in paragraph (b)(3) of this section, the minimum threshold level for reporting under this subpart shall be as specified in paragraphs (b)(1) and (b)(2) of this section.

(1) The owner or operator of a facility subject to this subpart shall submit an MSDS on or before October 17, 1990 (or within three months after the facility first becomes subject to this subpart), for all hazardous chemicals present at the facility at any one time in amounts equal to or greater than 10,000 pounds (or 4,540 kgs.) and for all extremely hazardous substances present at the facility in an amount greater than or equal to 500 pounds (or 227 kgs. -- approximately 55 gallons) or the TPQ, whichever is lower.

(2) The owner or operator of a facility subject to this subpart shall submit the Tier I form (or Tier II form) on or before March 1, 1991 (or March 1 of the first year after the facility first becomes a subject to this subpart), and annually thereafter, covering all hazardous chemicals present at a facility at any one time during the preceding calendar year in amounts equal to or greater than 10,000 pounds (or 4,540 kgs.) and extremely hazardous substances present at the facility in an amount greater than or equal to 500 pounds (or 227 kgs. -- approximately 55 gallons) or the TPQ, whichever is lower.

(3) The minimum threshold for reporting in response to requests for submission of an MSDS or a Tier II form under §§370.21(d) and 370.25(c) of this part shall be zero.

(55 FR 30646, July 26, 1990)


§370.21 MSDS reporting.

(a) Basic requirement. The owner or operator of a facility subject to this subpart shall submit an MSDS for each hazardous chemical present at the facility according to the minimum threshold schedule provided in paragraph (b) of §370.20 to the committee, the commission, and the fire department with jurisdiction over the facility.

(b) Alternative reporting. In lieu of the submission of an MSDS for each hazardous chemical under paragraph (a) of this section, the owner or operator may submit the following:

(1) A list of the hazardous chemicals for which the MSDS is required, grouped by hazard category as defined under §370.2 of this part;

(2) The chemical or common name of each hazardous chemical as provided on the MSDS; and

(3) Except for reporting of mixtures under §370.28(a)(2), any hazardous component of each hazardous chemical as provided on the MSDS.

(c) Supplemental reporting. (1) The owner or operator of a facility that has submitted an MSDS under this section shall provide a revised MSDS to the committee, the commission, and the fire department with jurisdiction over the facility within three months after discovery of significant new information concerning the hazardous chemical for which the MSDS was submitted.

(2) After October 17, 1987, the owner or operator of a facility subject to this section shall submit an MSDS for a hazardous chemical pursuant to paragraph (a) of this section or a list pursuant to paragraph (b) of this section within three months after the owner or operator is first required to prepare or have available the MSDS or after a hazardous chemical requiring an MSDS becomes present in an amount exceeding the threshold established in §370.20(b).

(d) Submission of MSDS upon request. The owner or operator of a facility that has not submitted the MSDS for a hazardous chemical present at the facility shall submit the MSDS for any such hazardous chemical to the committee upon its request. The MSDS shall be submitted within 30 days of the receipt of such request.


§370.25 Inventory reporting.

(a) Basic requirement. The owner or operator of a facility subject to this subpart shall submit an inventory form to the commission, the committee, and the fire department with jurisdiction over the facility. The inventory form containing Tier I information on hazardous chemicals present at the facility during the preceding calendar year above the threshold levels established in §370.20(b) shall be submitted on or before March 1 of each year, beginning in 1988.

(b) Alternative reporting. With respect to any specific hazardous chemical at the facility, the owner or operator may submit a Tier II form in lieu of the Tier I information.

(c) Submission of Tier II information. The owner or operator of a facility subject to this Section shall submit the Tier II form to the commission, committee, or the fire department having jurisdiction over the facility upon request of such persons. The Tier II form shall be submitted within 30 days of the receipt of each request.

(d) Fire department inspection. The owner or operator of a facility that has submitted an inventory form under this section shall on-site inspection by the fire department having jurisdiction over the facility upon request of the department, and shall provide to the department specific location information on hazardous chemicals at the facility.


§370.28 Mixtures.

(a) Basic reporting. The owner or operator of a facility may meet the reporting requirements of

§§370.21 (MSDS reporting) and 370.25 (inventory form reporting) of this subpart for a hazardous chemical that is a mixture of hazardous chemicals by:

(1) Providing the required information on each component in the mixture which is a hazardous chemical; or

(2) Providing the required information on the mixture itself, so long as the reporting of mixtures by a facility under 370.25 is in the same manner as under 370.21, where practicable.

(b) Calculation of the quantity. (1) If the reporting is on each component of the mixture which is a hazardous chemical, then the concentration of the hazardous chemical, in weight percent (greater than 1% or 0.1% if carcinogenic) shall be multiplied by the mass (in pounds) of the mixture to determine the quantity of the hazardous chemical in the mixture.

(2) If the reporting is on the mixture itself, the total quantity of the mixture shall be reported.

(c) Aggregation of extremely hazardous substances. (1) To determine whether the reporting threshold for an extremely hazardous substance has been equaled or exceeded, the owner or operator of a facility shall aggregate the following:

(i) The quantity of the extremely hazardous substance present as a component in all mixtures at the facility, and

(ii) All other quantities of the extremely hazardous substance present at the facility.

If the aggregate quantity of an extremely hazardous substance equals or exceeds the reporting threshold, the substance shall be reported.

(2) If extremely hazardous substances are being reported and are components of a mixture at a facility, the owner or operator of a facility may report either:

(i) The mixture, as a whole, even if the total quantity of the mixture is below its reporting threshold; or

(ii) The extremely hazardous substance component(s) of the mixture.

(55 FR 30646, July 26, 1990)

Subpart C -- Public Access and Availability of Information


§370.30 Requests for information.

(a) Request for MSDS information. (1) Any person may obtain an MSDS with respect to a specific facility by submitting a written request to the committee.

(2) If the committee does not have in its possession the MSDS requested in paragraph (a)(1) of this section, it shall request a submission of the MSDS from the owner or operator of the facility that is the subject of the request.

(b) Requests for Tier II information. (1) Any person may request Tier II information with respect to a specific facility by submitting a written request to the commission or committee in accordance with the requirements of this section.

(2) If the committee or commission does not have in its possession the Tier II information requested in paragraph (b)(1) of this section, it shall request a submission of the Tier II form from the owner or operator of the facility that is the subject of the request, provided that the request is from a State or local official acting in his or her official capacity or the request is limited to hazardous chemicals stored at the facility in an amount in excess of 10,000 pounds.

(3) If the request under paragraph (b)(1) of this section does not meet the requirements of paragraph (b)(2) of this section, the committee or commission may request submission of the Tier II form from the owner or operator of the facility that is the subject of the request if the request under paragraph (b)(1) of this section includes a general statement of need.


§370.31 Provision of information.

All information obtained from an owner or operator in response to a request under this subpart and any requested Tier II form or MSDS otherwise in possession of the commission or the committee shall be made available to the person submitting the request under this subpart; provided upon request of the owner or operator, the commission or committee shall withhold from disclosure the location of any specific chemical identified in the Tier II form.


Subpart D -- Inventory Forms

§370.40 Tier I emergency and hazardous chemical inventory form.

(a) The form set out in paragraph (b) of this section shall be completed and submitted as required in 370.25(a) of this part. In lieu of the form set out in paragraph (b) of this section, the facility owner or operator may submit a State or local form that contains identical content.

(b) Tier I Emergency and Hazardous Chemical Inventory Form.

Submission of this form is required by Title III of the Superfund Amendments and Reauthorization Act of 1986, Title III, Section 312, Public Law 99-499, codified at 42 U.S.C. 11022.

The owner or operator or the officially designated representative of the owner or operator must certify that all information included in the Tier I submission is true, accurate, and complete. On the Tier I form, enter your full name and official title. Sign your name and enter the current date. Also, enter the total number of pages in the submission, including all attachments.

The purpose of this form is to provide State and local officials and the public with information on the general types and locations of hazardous chemicals present at your facility during the past year.

You may substitute the Tier Two form for this Tier One form. (The Tier Two form provides detailed information and must be submitted in response to a specific request from State or local officials.)


§370.40 Who Must Submit This Form

Section 312 of Title III requires that the owner or operator of a facility submit this form if, under regulations implementing the Occupational Safety and Health Act of 1970, the owner or operator is required to prepare or have available Material Safety Data Sheets (MSDS) for hazardous chemicals present at the facility. MSDS requirements are specified in the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard, found in Title 29 of the Code of Federal Regulations at 1910.1200.

This form does not have to be submitted if all of the chemicals located at your facility are excluded under Section 311(e) of Title III or if the weight of each covered hazardous chemical never equals or exceeds the minimum threshold listed in Title III Section 312 during the reporting year.

You must report the information required on this form for every hazardous chemical for which you are required to prepare or have available an MSDS under the Hazard Communication Standard, unless the chemicals are excluded under Section 311(e) of Title III or they are below the minimum reporting thresholds.

Section 311(e) of Title III excludes the following substances:

(i) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration;

(ii) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use;

(iii) Any substance to the exent it is used for personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public.

(iv) Any substance to the extent it is used in a research laboratory or a hospital or other medical facility under the direct supervision of a technically qualified individual;

(v) Any substance to the extent it is used in routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.

OSHA regulations, Section 1910.1200(b), stipulate exemptions from the requirement to prepare or have available an MSDS.

Minimum thresholds have been established for Tier One/Tier Two reporting under Title III, Section 312. These thresholds are as follows:

For Extremely Hazardous Substances (EHSs) designated under section 302 of Title III, the reporting threshold is 500 pounds (or 227 kg.) or the threshold planning quantity (TPQ), whichever is lower:

For all other hazardous chemicals for which facilities are required to have or prepare an MSDS, the minimum reporting threshold is 10,000 pounds (or 4,540 kg.).

You need to report hazardous chemicals that were present at your facility at any time during the previous calendar year at levels that equal or exceed these thresholds. For instructions on threshold determinations for components of mixtures, see "What About Mixtures?'' on page 3 of these instructions.

Owners or operators of facilities that have hazardous chemicals on hand in quantities equal to or greater than set threshold levels must submit either Tier One or Tier Two Forms by March 1.

Send one completed inventory form to each of the following organizations:

1. Your State emergency response commission.

2. Your local emergency planning committee.

3. The fire department with jurisdiction over your facility.

Any owner or operator of a facility who fails to submit or supplies false Tier One information shall be liable to the United States for a civil penalty of up to $25,000 for each such violation. Each day a violation continues shall constitute a separate violation. In addition, any citizen may commence a civil action on his or her own behalf against any owner or operator who fails to submit Tier One information.

You may use the Tier Two form as a worksheet for completing Tier One. Filling in the Tier Two chemical information section should help you assemble your Tier One responses.

If your responses require more than one page, fill in the page number at the top of the form.


§370.40 Reporting Period

Enter the appropriate calendar year, beginning January 1 and ending December 31.

Enter the complete name of your facility (and company identifier where appropriate).

Enter the full street address or state road. If a street address is not available, enter other appropriate identifiers that described the physical location of your facility (e.g., longitude and latitude). Include city, county, state, and zip code.

Enter the primary Standard Industrial Classification (SIC) code and the Dun & Bradstreet number of your facility. The financial officer of your facility should be able to provide the Dun & Bradstreet number. If your firm does not have this information, contact the State or regional office of Dun & Bradstreet to obtain your facility number or have one assigned.

Enter the owner's or operator's full name, mailing address, and phone number.

Enter the name, title, and work phone number of at least one local person or office that can act as a referral if emergency responders need assistance in responding to a chemical accident at the facility.

Provide an emergency phone number where such emergency information will be available 24 hours a day, every day. This requirement is mandatory. The facility must make some arrangement to ensure that a 24 hour contact is available.

Check the box indicating identical information, located below the emergency contacts on the Tier One form, if the current information being reported is identical to that submitted last year. Chemical descriptions, amounts, and locations must be provided in this year's form, even if the information is identical to that submitted last year.

Descriptions, Amounts, and Locations This section requires aggregate information on chemicals by hazard categories as defined in 40 CFR 370.2. The two health hazard categories and three physical hazard categories are a consolidation of the 23 hazard categories defined in the OSHA Hazard Communication Standard, 29 CFR 1910.1200. For each hazard type, indicate the total amounts and general locations of all applicable chemicals present at your facility during the past year.

Hazard Category Comparison For Reporting Under Sections 311 and 312.

TABLE/GRAPH OMITTED

What units should I use?

Calculate all amounts as weight in pounds. To convert gas or liquid volume to weight in pounds, multiply by an appropriate density factor.

What about mixtures?

If a chemical is part of a mixture, you have the option of reporting either the weight of the entire mixture or only the portion of the mixture that is a particular hazardous chemical (e.g., if a hazardous solution weighs 100 lbs. but is composed of only 5% of a particular hazardous chemical, you can indicate either 100 lbs. of the mixture of 5 lbs. of the hazardous chemical).

The option used for each mixture must be consistent with the option used in your Section 311 reporting.

Because EHSs are important to Section 303 planning, EHSs have lower thresholds. The amount of an EHS at a facility (both pure EHS substances and EHSs in mixtures) must be aggregated for purposes of threshold determination. It is suggested that the aggregation calculation be done as a first step in making the threshold determination. Once you determine whether a threshold has been reached for an EHS, you should report either the total weight of the EHS at your facility, or the weight of each mixture containing the EHs.

Where do I count a chemical that is a fire and reactive physical hazard and an immediate (acute) health hazard?

Add the chemical's weight to your totals for all three hazard categories and include its location in all three categories. Many chemicals fall into more than one hazard category.