EMA Regulatory Alert: ANNUAL TIER II REPORTS COMPLIANCE DEADLINE

EMA Regulatory Counsel Contacts: Jeff Leiter and Jorge Roman

Pursuant Section 312 of the Emergency Preparedness and Community Right-to-Know Act (EPCRA), Tier II chemical inventory reports for calendar year 2025 must be filed with the State Emergency Response Commission (SERC), Local Emergency Planning Committee (LEPC) and local fire department by March 1, 2025.

Since 1987, EPCRA requires covered facilities, including those operated by energy marketers, to report each year on chemicals, including petroleum products, present at the facilities during the previous calendar year in quantities equal to or greater than established threshold quantities (discussed below). The information contained in the Tier II reports is used by state and local governments to respond to emergencies and address risks associated with stored hazardous chemicals.

Minimum Threshold Reporting Trigger

General Rule –– Covered chemicals are those chemicals for which Safety Data Sheets (SDS) are required under OSHA’s Hazard Communication Standard (29 CFR §1910.1200). Accordingly, facilities that store more than 10,000 pounds of a hazardous chemical at any point during the previous calendar year must file an EPCRA Tier II report. The 10,000 pounds compliance threshold is calculated by aggregating the maximum quantity of the hazardous chemical present onsite across all storage containers, including aboveground and underground storage tanks and portable skid tanks.

• Note: Under the regulation, the actual quantity stored is the trigger, not the storage capacity.

• Note: The household product exemption does not apply to heating oil stored for distribution or used for heating in business buildings.

Retail Fuel Threshold –– Retail gasoline facilities with 75,000 gallons or less of underground gasoline storage capacity and 100,000 gallons or less of underground diesel fuel storage capacity are exempt from EPCRA Tier II reporting requirements, provided that the underground storage tanks were in full compliance with Federal or State UST regulations at all times during the previous year. Cardlock fueling facilities are also subject to the retail fueling facilities exception, with the same storage capacity limits above.

The following gallons-to-pounds conversion chart below can be used to determine the 10,000-pound reporting trigger applicable to storage facilities other than retail gasoline and diesel fuel stations:

Information Required

EPCRA Tier II forms require information on the “physical hazards” and “health hazards” of each product stored on site where the minimum reporting threshold is triggered. EPA has adopted the physical and health hazards from OSHA’s HCS. Physical hazards and health hazards information, as well as the applicable Chemical Abstract Service (CAS) numbers, are obtained from the product’s Safety Data Sheet (SDS). Suppliers are required to provide a copy of the most recent SDS for each product sold to downstream energy marketers. Suppliers often post SDS for their products on their websites as well.

The physical and health hazards categories appear as two separate columns on the EPCRA Tier II Form. Under each column, a series of hazards are listed next to check off boxes. Petroleum products including gasoline, diesel fuel, heating oil, kerosene, etc. generally share common physical hazards and health hazards. Check off the following boxes under each column on the lower half of the form used for reporting “mixture or Product Name” (check corresponding product SDS for any variation):

• Under the physical hazard column on Tier II form, check off the boxes marked “explosive” and “flammable”

• Under the health hazard column on Tier II form, check off the boxes marked “skin corrosion or irritation,” “serious eye damage or irritation,” “respiratory or skin sensitization,” “carcinogenicity,” “reproduction toxicity,” and “aspiration hazard.”

• For propane, check all the boxes above plus “simple asphyxiant” and “gas under pressure.”

NAICS Codes & D-U-N-S Identifiers

North American Industrial Classification System (NAICS) codes must be used on EPCRA Tier II reports. Applicable NAICS codes for the petroleum marketing industry include:

• Petroleum Bulk plants - NAICS 424710

• Retail Gasoline Stations with Convenience Stores - NAICS 447110

• Retail Gasoline Stations without Convenience Stores - NAICS 447190

• Cardlock Sites – NAICS 447190

• Heating Oil Dealers - NAICS 454310

• Propane Dealers – NAICS 454310

Facilities must also enter their Dun & Bradstreet (D-U-N-S) number. This identifier helps state and local authorities identify facilities submitting Tier II reports. To find your D-U-N-S number go to: My Dun and Bradstreet Number.

Filing Forms & Authorities

• Paper Forms - EPCRA Tier II forms and instructions for paper filing may be downloaded here.

• Electronic Forms - Most states require EPCRA reports to be filed electronically through the EPA’s Tier II filing portal. The Tier II electronic filing portal for Windows and Mac applications may be downloaded here. An electronic filing tutorial is also available in that link.

Most states follow the reporting procedures described above. However, some states may vary. A complete list of state EPCRA Tier II requirements and where to file can be downloaded here.

Fees and Penalties

The fees associated with Tier II reporting vary by state, as each state sets its own fee structure for the submission of these reports. At the Federal level, there are no fees imposed for submitting a Tier II form. Consult state requirements here.

The EPA civil and administrative penalties for violating EPCRA Tier II reporting range from $23,331 to $174,985 per day, per violation. These civil penalties are subject to inflation adjustment each year. EPA checks for filing of EPCRA Tier II reports during routine compliance audits or after a release.

Inside the Beltway Update

The status of FY26 Appropriations is rapidly evolving, with a partial government shutdown scheduled to begin at 12:01 AM Saturday. This lapse will affect agencies covered by six specific spending bills, though operational impacts are expected to be minimal because the shutdown occurs over a weekend. The Senate initially failed to move the original six-bill package, leading to a bipartisan agreement to separate Department of Homeland Security (DHS) funding from the other five spending bills, which cover areas such as Defense, Labor-HHS, and State.

While the Senate is expected to pass this modified five-bill package and a two-week Continuing Resolution (CR) for DHS shortly, the House must still approve the revised measures, with floor consideration likely occurring early next week. Funding for the DHS remains the most uncertain element of the appropriations process due to ongoing negotiations regarding immigration and ICE-related issues. A two-week extension would delay the DHS funding deadline until mid-February, although there is a possibility that Congress may eventually opt for a full-year CR for this department specifically. While agencies such as FEMA, CISA, and the Coast Guard are implicated in this funding gap, ICE maintains substantial prior funding to continue its operations. Despite political opposition from various sides, leadership in both chambers and the White House appear committed to avoiding a prolonged shutdown.

Meanwhile, during a speech in Clive, Iowa, President Donald Trump urged Congress to finalize a deal permitting the year-round sale of E15 fuel, a move aimed at supporting struggling corn farmers by expanding their market access. Trump specifically called on Speaker Mike Johnson and Leader John Thune to reach an agreement that balances the interests of farmers, consumers, and refiners, indicating he would sign the legislation "without delay" once it reaches his desk. This public endorsement aligns the White House with biofuels proponents following a failed attempt by Midwestern Republicans to include E15 in a recent government funding package, which led to the creation of a rural energy working group to mediate between ethanol and oil interests. As another example of President Trump’s support for the oil and gas industry, the trump administration kicked of the process of opening federal waters off the California coast to new oil and gas drilling, which was promptly rebuked by West Coast officials.

House Agriculture Committee Chair G.T. Thompson (R-Pa.) is planning a farm bill markup for the week of Feb. 23, with the goal of securing a House floor vote before the Easter recess. This "Farm Bill 2.0" is expected to mirror the version from May 2024, focusing on rural development and research priorities rather than the major commodity and crop insurance programs addressed in previous legislation. However, the timeline remains contingent on receiving cost estimates from the Congressional Budget Office. Politically, Thompson faces a challenge in securing support due to a slim GOP majority and Democrat opposition stemming from prior cuts to the Supplemental Nutrition Assistance Program (SNAP). Passing the bill may require persuading frontline Democrats ahead of the upcoming midterm elections.

EMA Regulatory Reminder: Regional Hours of Service Waiver Granted Due to Major Winter Storm

EMA Regulatory Counsel Contacts: Jeff Leiter and Jorge Roman

Last Friday, the Federal Motor Carrier Safety Administration (FMCSA) issued a new regional emergency declaration in response to a winter storm threatening to severely disrupt fuel distribution. This declaration grants an immediate interstate Hours of Service (HOS) waiver for motor carriers transporting essential goods and services, including fuel, until the end of the emergency or February 6––whichever is earlier.

Importantly, this new declaration is separate from the two existing heating fuel declarations, which remain in effect. FMCSA opted not to modify the existing declarations and instead issued a much broader, standalone declaration. As a result, FMCSA now has three emergency declarations posted.

Scope of the New Declaration

The new declaration applies to 40 states and jurisdictions, including:
ALABAMA, ARKANSAS, COLORADO, CONNECTICUT, DELAWARE, DISTRICT OF COLUMBIA, FLORIDA, GEORGIA, ILLINOIS, INDIANA, IOWA, KANSAS, KENTUCKY, LOUISIANA, MARYLAND, MASSACHUSETTS, MICHIGAN, MISSISSIPPI, MINNESOTA, MISSOURI, MONTANA, NEBRASKA, NEW HAMPSHIRE, NEW JERSEY, NEW YORK, NORTH CAROLINA, NORTH DAKOTA, OHIO, OKLAHOMA, PENNSYLVANIA, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, VERMONT, VIRGINIA, WEST VIRGINIA, WISCONSIN, AND WYOMING.

The declaration waives HOS requirements for the interstate transportation of all fuels as essential supplies, including but not limited to:

• Gasoline

• Diesel (including diesel used to fuel generators and snow removal equipment)

• Kerosene

• Jet fuel

• Diesel additives

• Heating fuels and heating oils

• Propane

Note that this new declaration covers motor fuels.

Important: the FMCSA waiver applies to the interstate transportation of fuel into and out of the covered states and jurisdictions. The relief remains in effect even when vehicles travel through states not listed in the declaration, provided the shipment is destined for a covered state. However, the waiver does not apply to intrastate-only shipments, meaning deliveries that occur entirely within a single state.

Important: This relief ends when a driver or vehicle is dispatched to resume normal commercial operations unrelated to the emergency. Drivers transitioning from emergency relief to normal operations must take a required rest break—10 hours for property carriers—once applicable duty-hour thresholds are met.

Click here to read the notice

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