Defining responsibility for EPCRA compliance on a site can often lead to questions that apply only to that particular situation or event. One such situation is that of chemicals brought on a site by contractors hired to perform work and where reporting responsibility lies—with the facility owner/operator or with the contractor.
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According to the Environmental Protection Agency (EPA), the responsibility to report under EPCRA sections 311 and 312 follows the responsibility to “prepare or have available” Safety Data Sheet (SDSs) for any hazardous chemicals as required by the Occupational Safety and Health Administration (OSHA). Since the contractor brought the chemicals on-site, it is their responsibility to comply with all applicable regulations, including the SDSs and EPCRA reporting, because the contractor is considered to be operating a facility during their work phase (such as in the case of a construction project). Therefore, the owner/operator of the facility should not factor these chemicals into their thresholds or reporting activities.
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Another area that requires clarification is that of EPCRA responsibility when the property owner and the facility operator are not the same entity. The EPA is adamant that it is not legally possible for a property owner to relieve themselves of regulatory compliance responsibility by using contractual language in a lease, such as requiring the lessee to comply with all applicable governmental regulations, laws, and requirements. Specifically, the EPA states, that “Private parties cannot by contract exempt themselves from liability created by the statutory provisions of EPCRA.”
Seems simple, however, the letter of the law actually states responsibility lies with both “the owner or operator of any facility which 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 under that act.” Thus it is conceivable that both parties—the owner/lessor and the operator/lessee could be required to report under sections 311 and 312 or just one, as defined by OSHA regulations for SDSs responsibility.
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A similar case is that of a facility that houses multiple companies, such as a large warehouse where different and unrelated businesses store chemicals. Again, the EPA is emphatic about EPCRA responsibility stating, “The ownership/operatorship of the chemicals is not an issue here, but rather the ownership/operatorship of the facility at which the chemicals are present.” While it is clear what ownership entails, operatorship means anyone or company that rents space and participates in operation of the facility to any extent such as when physically entering the facility, storing materials there, and leaving the facility, or if they do not enter the facility but have control over who can enter the facility space. Thus, again, responsibility for EPCRA compliance could fall to both owners and operators and both could be liable in the event of noncompliance.
Change of facility ownership is another situation where more than one party may be responsible for EPCRA reporting requirements. If both owners/operators are required to report, both must report. If they are subject to EPCRA sections 302 and 303, they must also report within 30 days to the State Emergency Planning Commission (SERC) and Local Emergency Planning Committee (LEPC) any change that has occurred that could impact emergency planning. When determining how best to report, the EPA suggests consulting with the SERC to establish whether they would prefer one joint report covering the entire year or separate reports for each period of ownership.
Owners and operators of facilities that are normally exempt from EPCRA should also know that they may be designated as subject to the emergency planning provisions in sections 301 to 304 by the governor or the SERC with jurisdiction. In this case, the facility owner/operators would be notified and public notice and comment periods would be provided before the designation taking effect.