The deadline to file your Tier II hazardous chemical inventory report is March 1, 2017. If you do not file the Tier II report on time, you could be subject to enforcement actions, including significant penalties. Today we will review the penalties for faulty Tier II reporting and also take a look at trade secret claims when it comes to these annual reports.
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Note: The Emergency Planning and Community Right to Know Act (EPCRA) requires that facilities submit a Tier II form by March 1 for the previous calendar year. Since this is a statutory provision, the U.S. Environmental Protection Agency (EPA) cannot grant extensions to the deadline. Tier II forms must be submitted to local agencies on or before March 1, even if the reporting deadline falls on a Saturday or Sunday.
What You Have to Lose
There are a couple of penalties at the federal level for violating Tier II reporting requirements, and they can be pretty steep. States can also impose penalties that are additional and/or stricter than the federal penalties. Here’s a review of the federal penalties for faulty Tier II reporting.
General violations of Tier II reporting requirements can net you administrative and civil fines of up to $54,789 per day per violation.
Medical emergencies. EPCRA requires that owners/operators of facilities subject to Tier II reporting requirements immediately provide the form to any treating physician or nurse who requests the information if the physician or nurse determines that:
- A medical emergency exists;
- The specific chemical identity of the chemical concerned is necessary for or will assist in emergency or first-aid diagnosis or treatment; and
- The individual or individuals being diagnosed or treated have been exposed to the chemical concerned.
A trade secret claim cannot be used when the Tier II information is requested for medical emergencies, but there are provisions for written confidentiality agreements, although they may not be used as a precondition for providing the information.
Failure to provide Tier II information to physicians or nurses can open you to administrative and civil fines of up to $21,916 per day per violation.
Trade secrets. If you make a frivolous trade secret claim when it comes to Tier II reporting, you are subject to administrative and civil fines of up to $54,789 per day per violation. In addition, you also face a criminal penalty of up to $20,000 and a year in prison.
Be Careful Making a Trade Secret Claim
It is critical to be careful in making trade secret claims under EPCRA, as it is the only violation under the reporting requirements of the statute that can land you in jail. You can claim as a trade secret the chemical identity subject to Tier II reporting requirements under two conditions:
- You must provide the generic chemical class or category that is structurally descriptive of the chemical, along with all other required information, and submit a trade secret claim form.
- If you do not want to disclose to the public the specific chemical location, the information may be claimed as confidential by submitting a separate Confidential Location Information Sheet. This information may be withheld from the public but not from the local agencies.
It is important to note that as states may have stricter Tier II reporting requirements, federal EPCRA trade secrets claim provisions may not apply. You may have to file your trade secret claim in accordance with your state’s trade secret provisions.