The Battery Pitfall: A Good Reason for a Self-Audit
- Published: September 01, 2000, By Shiela A. Millar, Partner, Keller and Heckman LLP, Washington, DC
Last month we discussed the benefits of environmental self-audits. This month, we examine a case in point. Large quantities of dangerous chemicals frequently are found in unexpected places and can expose converters, suppliers, and their customers to regulatory liability with surprisingly high fines.
For example, did you know that three forklifts can contain enough sulfuric acid in their batteries to trigger reporting obligations? Large batteries also are found in emergency power backup systems used for communication equipment, computers, lighting, etc., present at many facilities.
Sulfuric acid is classified as an extremely hazardous substance (EHS) under the Emergency Planning and Community Right-to-Know Act (EPCRA). A facility with 500 lb on-site is subject to one-time and annual reporting requirements. Fines for noncompliance with these reporting obligations can be as high as $11,000 and $27,500 per violation per day, respectively. Quantities of sulfuric acid at 1,000 lb or more trigger an additional notification requirement with fines for violation of up to $27,500 per violation per day.
All told, in an extreme case, EPCRA fines could be in the multimillion dollar range.
Reporting obligations associated with batteries have been widely overlooked in industry. Many have considered these to be not chemicals but "articles," which are exempt from EPCRA reporting requirements. EPA, however, does not consider batteries to be exempt "articles" because they have the potential to leak, spill, or break during normal conditions of use, including foreseeable emergencies.
EPCRA was designed to facilitate planning for chemical emergencies and to provide information to the public about the chemicals used, stored, and released into their communities. Basically, EPCRA requires facilities to provide information on the presence and release of hazardous chemicals. This information is used by state emergency response commissions (SERCs), local emergency planning committees (LEPCs), and fire departments. The chemicals subject to reporting requirements under EPCRA consist of EHSs and hazardous chemicals, which are defined as any chemical that requires a material safety data sheet (MSDS) under the Occupational Safety and Health Act (OSHA). EPCRA's requirements are triggered when threshold quantities of these substances are exceeded.
Following are some of the EPCRA obligations relevant to the battery situation:
- Section 302: Section 302 and the regulations at 40 C.F.R. 355.30 require facilities at which an EHS is present at or above the designated threshold quantities to notify the SERC that the facility is subject to the emergency planning requirements of EPCRA. Facilities must provide notification within 60 days of becoming subject to the requirements. The threshold planning quantity (TPQ) for sulfuric acid is 1,000 lb.
- Section 311: Section 311 and the regulations at 40 C.F.R. part 370 require a one-time notification of the presence of hazardous chemicals within three months after the requirement is triggered by having a reportable quantity on-site. The "basic requirement" is that an MSDS must be submitted to the SERC, LEPC, and the local fire department. A revised MSDS must be submitted within three months if significant new information regarding the chemical is discovered. Alternatively, a list grouped by hazard category may be submitted. Under this section, the threshold for reporting EHSs is the lower of 500 lb or the TPQ. Since the TPQ for sulfuric acid is 1,000 lb, the threshold under this section is 500 lb.
- Section 312: Section 312 uses the same threshold as section 311. This section, however, requires annual reporting by March 1 of each year. The reporting is in the form of a Tier I report or the more detailed Tier II report. Each state can choose which form it prefers. These reports provide information regarding each hazardous chemical's identity, physical and health hazards, and location.
