Title 40—Protection of Environment--Volume 1
PART 355—EMERGENCY PLANNING AND NOTIFICATION
§ 355.1   What is the purpose of this part?
(a) This part (40 CFR part 355) establishes requirements for a facility to provide information necessary for developing and implementing State and local chemical emergency response plans, and requirements for emergency notification of chemical releases. This part also lists Extremely Hazardous Substances (EHSs) and Threshold Planning Quantities (TPQs) in Appendices A and B, which are used in determining if you are subject to these requirements.
(b) This part is written in a special format to make it easier to understand the regulatory requirements. Like other Environmental Protection Agency (EPA) regulations, this part establishes enforceable legal requirements. Information considered non-binding guidance under EPCRA is indicated in this regulation by the word “note” and a smaller typeface. Such notes are provided for information purposes only and are not considered legally binding under this part.
§ 355.2   Who do “you,” “I,” and “your” refer to in this part?
Throughout this part, “you,” “I,” and “your” refer to the owner or operator of a facility.
§ 355.3   Which section contains the definitions of the key words used in this part?
The definitions of key words used in this part are in § 355.61. It is important to read the definitions for these key words because the definition explains the word's specific meaning associated with the regulations in this part.
§ 355.10   Must my facility comply with the emergency planning requirements of this subpart?
You must comply with the emergency planning requirements in this subpart if your facility meets either of the following two conditions:
(a) Any extremely hazardous substance (EHS) is present at your facility in an amount equal to or greater than its threshold planning quantity (TPQ), or
(b) Your facility has been designated for emergency planning purposes, after public notice and opportunity for comment, by one of the following three entities:
(1) The State Emergency Response Commission (SERC).
(2) The Governor of the State in which your facility is located.
(3) The Chief Executive Officer of the Tribe for the Indian Tribe under whose jurisdiction your facility is located.
§ 355.11   To what substances do the emergency planning requirements of this subpart apply?
The emergency planning requirements of this subpart apply to any EHS listed in Appendices A and B of this part. Additionally, if a facility is designated for emergency planning purposes, as provided in § 355.10(b), substances that are not EHSs at this facility may become subject to the emergency planning requirements.
§ 355.12   What quantities of extremely hazardous substances trigger emergency planning requirements?
Any EHS present at your facility in an amount equal to or greater than its TPQ triggers the emergency planning requirements of this subpart. The TPQs are listed in Appendices A and B of this part in the column labeled “threshold planning quantity.”
§ 355.13   How do I calculate the quantity of an extremely hazardous substance present in mixtures?
If an EHS is present in a mixture in a particular container, determine the quantity (in pounds) of the EHS in that container by multiplying the concentration of the EHS (in weight percent) by the weight (in pounds) of the mixture in the container. If the concentration of an EHS is less than or equal to one percent in the mixture, you do not have to count that EHS. Here is an example calculation:
§ 355.14   Do I have to aggregate extremely hazardous substances to determine the total quantity present?
You must aggregate ( i.e. , add together) the amounts of each EHS at your facility to determine if a TPQ is present. This means that, for a particular EHS, you must determine the total amount present at any one time at your facility by adding together the quantity of pure EHS and the quantity contained in all mixtures, regardless of location, number of containers, or method of storage. You do not have to count an EHS in a mixture if the concentration of that EHS is less than or equal to one percent.
§ 355.15   Which threshold planning quantity do I use for an extremely hazardous substance present at my facility in solid form?
EHSs that are in solid form are subject to one of two different TPQs (for example, TPQs may be listed as 500/10,000 pounds), both of which are listed in Appendices A and B of this part. Here is how to determine which of the two listed TPQs you must use for an EHS present at your facility in solid form:
(a) Use the lower TPQ from Appendices A and B of this part if the solid:
(1) Is in powdered form and has a particle size less than 100 microns;
(2) Is in solution;
(3) Is in molten form; or
(4) Meets the criteria for a National Fire Protection Association (NFPA) rating of 2, 3 or 4 for reactivity.
Use the instructions in § 355.16 to calculate the quantity present for the categories of solids listed in paragraphs (a)(1), (2) and (3) of this section.
(b) If the solid does not meet one of the criteria in paragraph (a) of this section, then the TPQ is 10,000 pounds.
§ 355.16   How do I determine the quantity of extremely hazardous substances present for certain forms of solids?
For the three forms of solids that are listed in § 355.15(a)(1) through (3), use these instructions to determine the quantity of extremely hazardous substance present:
(a) Solid in powdered form with a particle size less than 100 microns. Multiply the weight percent of solid with a particle size less than 100 microns in a particular container by the total weight of solid in the container.
(b) Solid in solution. Multiply the weight percent of the non-reactive solid in solution in a particular container by the total weight of solution in that container. Then multiply by 0.2.
This reduction in quantity must not be used to determine the amount present at one-time at a facility for reporting under 40 CFR 370.10.
(c) Solid in molten form. Multiply the weight of the non-reactive solid in molten form by 0.3.
This reduction in quantity must not be used to determine the amount present at one-time at a facility for reporting under 40 CFR 370.10.
§ 355.20   If this subpart applies to my facility, what information must I provide, who must I submit it to, and when is it due?
Use this table to determine the information you must provide, who to provide it to, and when:
§ 355.21   In what format should the information be submitted?
EPA does not require any specific format. EPA recommends that you submit the information described in § 355.20 in writing in order to insure appropriate documentation. The SERC or LEPC may request that this information be submitted in a specific format.
§ 355.30   What facilities must comply with the emergency release notification requirements of this subpart?
You must comply with the emergency release notification requirements in this subpart if both of these two conditions are met:
(a) You produce, use, or store a hazardous chemical at your facility; and
(b) You release a reportable quantity (RQ) of any EHS or of a hazardous substance as defined by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA Hazardous Substance) at your facility. Certain releases are exempted from these requirements. Exempted releases are listed in § 355.31.
In addition to the emergency release notification requirements of this subpart, releases of CERCLA hazardous substances are subject to the notification requirements under CERCLA. This is explained further in subpart D of this part.
§ 355.31   What types of releases are exempt from the emergency release notification requirements of this subpart?
You do not have to provide emergency release notification under this subpart for any of the following six types of releases of EHSs or CERCLA hazardous substances that occur at your facility:
(a) Any release that results in exposure to persons solely within the boundaries of your facility.
(b) Any release that is a federally permitted release as defined in section 101(10) of CERCLA.
(c) Any release of a pesticide product that is exempt from reporting under section 103(e) of CERCLA.
(d) Any release that does not meet the definition of release under section 101(22) of CERCLA and is therefore exempt from CERCLA section 103(a) reporting.
(e) Any radionuclide release that occurs:
(1) Naturally in soil from land holdings such as parks, golf courses, or other large tracts of land.
(2) Naturally from land disturbance activities, including farming, construction, and land disturbance incidental to extraction during mining activities, except that which occurs at uranium, phosphate, tin, zircon, hafnium, vanadium, monazite, and rare earth mines. Land disturbance incidental to extraction includes: Land clearing; overburden removal and stockpiling; excavating, handling, transporting, and storing ores and other raw (not beneficiated or processed) materials; and replacing in mined-out areas coal ash, earthen materials from farming or construction, or overburden or other raw materials generated from the exempted mining activities.
(3) From the dumping and transportation of coal and coal ash (including fly ash, bottom ash, and boiler slags), including the dumping and land spreading operations that occur during coal ash uses.
(4) From piles of coal and coal ash, including fly ash, bottom ash, and boiler slags.
(f) Any release less than 1,000 pounds per 24 hours of nitrogen oxide or nitrogen dioxide to the air which is the result of combustion and combustion related activities.
(g) Air emissions from animal waste (including decomposing animal waste) at a farm.
§ 355.32   Which emergency release notification requirements apply to continuous releases?
If the release of an EHS or CERCLA hazardous substance is continuous and stable in quantity and rate at your facility as defined in 40 CFR 302.8(b), then the release qualifies for reduced reporting requirements under this subpart. Under these reduced reporting requirements, you do not need to provide the notifications required under § 355.40. However, in addition to the notifications required under 40 CFR 302.8, you must make all of the following notifications to the community emergency coordinator for the LEPC for any area likely to be affected by the release and to the SERC of any State likely to be affected by the release:
(a) Initial notifications as specified in 40 CFR 302.8 (d) and (e).
(b) Notification of a “statistically significant increase,” defined in 40 CFR 302.8(b) as any increase above the upper bound of the reported normal range.
(c) Notification of a “new release” as specified in 40 CFR 302.8(g)(1).
(d) Notification of a change in the normal range of the release as specified under 40 CFR 302.8(g)(2).
§ 355.33   What release quantities of EHSs and CERCLA hazardous substances trigger the emergency release notification requirements of this subpart?
The release of a reportable quantity (RQ) of an EHS or CERCLA hazardous substance within any 24-hour period triggers the emergency release notification requirements. RQs for EHSs are listed in Appendices A and B of this part in the column labeled “reportable quantity.” RQs for CERCLA hazardous substances are listed in Table 302.4 of 40 CFR 302.4 in the column labeled “final RQ.”
§ 355.40   What information must I provide?
You must make two separate notifications to comply with the emergency release notification requirements of this subpart: an immediate notification, and as soon as practicable thereafter a written follow-up emergency notification (or notifications, as more information becomes available).
(a) Immediate notification. The notice required under this section shall include as much of the following information known at the time. However, the retrieval of this information should not cause a delay in the notification on the emergency response.
(1) The chemical name or identity of any substance involved in the release.
(2) Indicate whether the substance is an EHS.
(3) Provide an estimate of the quantity of any such substance that was released into the environment.
(4) State the time and duration of the release.
(5) The medium or media into which the release occurred.
(6) Any known or anticipated acute or chronic health risks associated with the emergency and, where appropriate, advice regarding medical attention necessary for exposed individuals.
(7) Proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordinator pursuant to the emergency plan).
(8) The name and telephone number of the individual (or individuals) to be contacted for further information.
(b) Written follow-up emergency notification. Except for releases that occur during transportation or from storage incident to transportation, you must provide a written follow-up emergency notice (or notices, as more information becomes available), as soon as practicable after the release. In the written follow-up emergency notice, you must provide and update the information required in the immediate notification and include additional information with respect to all of the following:
(1) Actions taken to respond and contain the release.
(2) Any known or anticipated acute or chronic health risks associated with the release.
(3) Where appropriate, advice regarding medical attention necessary for exposed individuals.
(c) You are not required to submit a written follow-up notification for a release that occurred during transportation or from storage incident to transportation. See § 355.42(b) for requirements for reporting such releases.
§ 355.41   In what format should the information be submitted?
The immediate notification, described in § 355.40(a), should be oral. The follow-up emergency notification, described in § 355.40(b), shall be in writing. EPA does not specify a particular format for the written follow-up emergency notification.
The SERC and LEPC may request a specific format for this information.
§ 355.42   To whom must I submit the information?
(a) You must provide the immediate emergency release notification information and the written follow-up notification to:
(1) The community emergency coordinator for the LEPC of any area likely to be affected by the release (if there is no LEPC, notify the relevant local emergency response personnel); and
(2) The SERC of any State likely to be affected by the release.
(b) For a release that occurs during transportation or from storage incident to transportation, you may meet the requirements of this subpart by notifying the 911 operator (or in the absence of a 911 emergency telephone number, the operator) of the immediate notification information listed in § 355.40(a). You are not required under this subpart to submit a written follow-up notification, as described in § 355.40(b), for such a release.
§ 355.43   When must I submit the information?
(a) You must provide the required emergency release notification information described under § 355.40(a), immediately.
(b) You must provide the written follow-up emergency notice (or notices, as more information becomes available) described under § 355.40(b), as soon as practicable after the release.
§ 355.60   What is the relationship between the emergency release notification requirements of this part and the release notification requirements of CERCLA?
The emergency release notification requirements of this part are in addition to the release notification requirements of CERCLA. If you have a release of a CERCLA hazardous substance, you must comply with the emergency release notification requirements of this part and the release notification requirements of CERCLA section 103, codified at 40 CFR part 302. Use this table to determine which emergency release notification requirements apply to your release:
Note: This table only applies to reportable releases, not to exempt releases.
§ 355.61   How are key words in this part defined?
Animal waste means feces, urine, or other excrement, digestive emission, urea, or similar substances emitted by animals (including any form of livestock, poultry, or fish). This term includes animal waste that is mixed or commingled with bedding, compost, feed, soil, or any other material typically found with such waste.
CERCLA means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.
CERCLA hazardous substance means a substance defined in section 101(14) of CERCLA and listed in Table 302.4 of 40 CFR 302.4.
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.
Environment includes water, air, and land and the interrelationship that exists among and between water, air, and land and all living things.
EPCRA means the Emergency Planning and Community Right-To-Know Act of 1986.
Extremely hazardous substance (EHS) means a substance listed in Appendices A and B of this part.
Facility means all buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person (or by any person that controls, is controlled by, or under common control with, such person). Facility includes 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.
Farm means a site or area (including associated structures) that—
(1) Is used for—
(i) The production of a crop; or
(ii) The raising or selling of animals (including any form of livestock, poultry, or fish); and
(2) Under normal conditions, produces during a farm year any agricultural products with a total value equal to not less than $1,000.
Hazardous chemical means any hazardous chemical as defined under 29 CFR 1910.1200(c), except that this term does not include:
(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:
(i) 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. 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;
(ii) In a research laboratory or hospital or other medical facility under the direct supervision of a technically qualified individual; or
(iii) In routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.
Indian Country means Indian country defined in 18 U.S.C. 1151 as:
(1) 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;
(2) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and
(3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
Indian Tribe or Tribe means those Tribes federally recognized by the Secretary of the Interior.
LEPC means the Local Emergency Planning Committee appointed by the State Emergency Response Commission.
Medium or media means the environment ( i.e. , air, water, land).
Mixture means, for the purposes of 40 CFR part 355, a heterogeneous association of substances where the various individual substances retain their identities and can usually be separated by mechanical means. This definition includes, for the purposes of 40 CFR part 355, solutions but does not include alloys or amalgams.
Non-reactive solid means any substance listed in Appendix A or B of this part with two threshold planning quantity values, the higher TPQ being 10,000 pounds.
Person means any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or interstate body.
Reactive solid means any extremely hazardous substance denoted with “a” in the “Notes” column in Appendix A or B of this part.
Release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles) of any hazardous chemical, EHS, or CERCLA hazardous substance.
Reportable quantity means, for any CERCLA hazardous substance, the quantity established in Table 302.4 of 40 CFR 302.4, for such substance. For any EHS, reportable quantity means the quantity established in Appendices A and B of this part for such substance. Unless and until superseded by regulations establishing a reportable quantity for newly listed EHSs or CERCLA hazardous substances, a weight of 1 pound shall be the reportable quantity.
SERC means the State Emergency Response Commission for the State in which the facility is located except where the facility is located in Indian Country, in which case, SERC means the Emergency Response Commission for the Tribe under whose jurisdiction the facility is located. In the absence of a SERC for a State or Indian Tribe, the Governor or the chief executive officer of the tribe, respectively, shall be the SERC. Where there is a cooperative agreement between a State and a Tribe, the SERC shall be the entity identified in the agreement.
Solution means any aqueous or organic solutions, slurries, viscous solutions, suspensions, emulsions, or pastes.
State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, any other territory or possession over which the United States has jurisdiction and Indian Country.
Threshold planning quantity means, for a substance listed in Appendices A and B of this part, the quantity listed in the column “threshold planning quantity” for that substance.