Form R: Keeping Communities Aware, Keeping Hazardous Chemicals in Check

While conducting a plant-wide chemical inventory audit at a client’s facility, I observed some chemicals that I knew were on the Section 313 Form R chemical list. The chemicals were flagged by the Emergency Planning and Community Right-to-Know Act (EPCRA), meaning that they must be reported annually on the Form R report. I asked the client if his company had been filing Form R reports, and his reply was similar to one that I have heard many times after posing this question: “What is a Form R report?”

Form R is a provision under Section 313 of the EPCRA legislation. It stipulates that designated facilities must voluntarily report the use of certain hazardous chemicals to the U.S. Environmental Protection Agency (EPA) on July 1 of every year. This information is subsequently compiled and made available to the public. The Form R report is not intended to impose restrictions on which chemicals can be stored, used, released, discarded or transferred at a facility. Rather, it is meant to give the public information about the actual or potential release of hazardous chemicals in and around their neighborhood.

What Initiated the Form R report?

EPCRA was ratified in 1986 in response to two highly publicized industrial accidents. The first industrial accident took place in 1984 at Union Carbide’s Bhopal, India pesticide plant. This disaster, which numerous experts have deemed to be the worst non-nuclear industrial accident in history, was initiated by the release of methyl isocyanate. The accident caused thousands of immediate fatalities and between 150,000 to 600,000 injuries. According to a 2005 investigation broadcast on the BBC, Bhopal is still highly contaminated and remains a perilous area for residence. In fact, some areas reportedly remain so heavily polluted that an individual who lingers in a highly contaminated area for more than 10 minutes is likely to lose consciousness.

The second industrial accident occurred at Union Carbide’s Institute facility in West Virginia in 1985. A toxic mixture of methylene chloride and aldicarb oxime was released, which resulted in the hospitalization of 134 people. While this accident did not result in fatalities, its similarities to Bhopal led to a stark realization that industrial accidents could happen in the U.S.

One year after the incident in West Virginia, Congress passed EPCRA. This act established standards intended to increase security and planning in plants, as well as awareness and safety among the general public. The stipulations in the act include the public’s right to know when a hazardous chemical has been released, the facility’s need for an emergency plan in the case of a release, and the public’s right to know where hazardous chemicals are being used.

Does Form R Reporting Affect You?

According to the 2005 version of the Toxic Chemical Release Inventory (which can be viewed at www.epa.gov/tri), reports must be filed by facilities that meet all of the following criteria:

• The facility has 10 or more full-time employees
• The facility is included in certain Standard Industrial Classification (SIC) codes
• The facility manufactures more than 25,000 lb/year, processes more than 25,000 lb/year or otherwise uses more than 10,000 lb/year of any marked chemical.

Form R reporting is of particular relevance to the industrial coatings industry because many organic solvents are on the Form R reporting list. Furthermore, coatings industry members need to be cautious when switching to a new product line or vendor. While one vendor’s products might not contain Form R chemicals, another vendor’s products may. Businesses in the coatings industry must remain vigilant any time a product change is made.

Completing and submitting Form R reports accurately is a time-consuming process, especially for small businesses. With regard to first time filers, the Office of Management and Budget estimates that each persistent bioaccumulative toxic chemical (PBT) will take 56 hours to evaluate, while each non-PBT will take an estimated 30 hours to evaluate.

Gathering the data required to be on the Form R report is also time consuming because the EPA expects specific and detailed chemical usage information, including a facility’s chemical disposal methods. As an example, if a facility is disposing of a chemical by sending it to a landfill, the EPA will expect the facility to report information about when it was removed, the location of the landfill, how much was sent to the landfill, and any treatment performed on the chemical before removing it from the facility.

While some states charge a fee to file the reports, this approach has been met with stiff resistance as it is really a means to “tax” a company without legislation. However, the fees are minimal and should not be a deterrent to filing.

The consequences for not reporting can range from a letter announcing that the plant is on notice to a stiff monetary fine. In fact, the EPA can fine facilities $27,500 per day, per chemical. I once worked with a company that had five facilities and roughly 150 employees per facility. All of the facilities had the same manufacturing process, and none of the facilities had reported Form R. The number of employees indicated that the company had the resources and manpower to comply with the regulations but did not do so. After failing to report for three years, the facility was found to be noncompliant, and it incurred a fine of $375,000.

Where Do You Go From Here?

The reports are retroactive. For example, reports filed in July 1, 2006 were for 2005 information. A company filing a late report in, say, March 2007 would therefore still file information for the 2005 year. Another report would be due July 1, 2007 for the 2006 year.

Facility operators that have not been filing Form R reports should contact legal counsel immediately and get to work on filing a report as quickly as possible. The required information can be compiled by comparing current MSDS sheets, and the chemicals on these MSDS sheets, to the list of over 650 hazardous chemicals, along with their associated Chemical Abstract Service (CAS) numbers, located at www.epa.gov/tri. Any listed chemical that is being used above the threshold must be reported on the form, which can be found at the same website.

Outside experts can be hired to provide guidance and assistance regarding Form R reports. These experts can centralize the data from MSDS sheets into a computerized chemical inventory of the plant. A chemical inventory allows employees to quickly and easily compare CAS numbers and chemical compound names to the regulated chemicals list. Outside vendors are also helpful because they understand EPA regulations in detail, which enables them to investigate whether a facility is complying with the myriad chemical-driven regulations.

After submitting Form R reports, a facility should expect to receive a confirmation letter from the EPA in 60-120 days. If the confirmation notice is correct, then that facility is done for that reporting year. If there is a mistake, the facility must correct and return the submission.

Reducing Risks

Filing Form R reports promptly and accurately is beneficial to plant owners, plant employees and concerned members of the public. Although the form is time consuming, completing and submitting it in a timely fashion will reduce the plant owner’s risks of incurring a fine, the plant employees’ risks of encountering hazardous chemicals unknowingly, and the public’s risks of living in the vicinity of hazardous chemicals with no way to access information about them. If you have not been filing Form R’s, you should start doing so immediately.

Mike Ogburn is eCAP development manager for August Mack Environmental, Indianapolis, IN. He has spent the last 18 years designing chemical inventory tracking systems to assist manufacturing companies in complying with EPA, DOT and OSHA regulations. He can be reached at 317.579.7400, ext. 259, or mogburn@augustmack.com.