^ PRQt*^
EPCRA Section 31 3 Questions and Answers
Addendum to the Revised 1998 Version as of December 2004
Section 313 of the
Emergency Planning and
Community Right-to-Know Act
Toxic Chemical Release Inventory
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EPCRA Section 313 Questions and Answers Addendum
INTRODUCTION AND DISCLAIMER
In December, 1998, the Environmental Protection Agency (EPA) published a
revised Emergency Planning and Community Right-to-Know Act (EPCRA)
Section 313 Questions and Answers Document (1998 Q & A
Document)(EPA 745-B-98-004). The EPCRA Section 313 program is also
referred to as the Toxics Release Inventory or TRI. Under Section 313,
certain facilities are required to report releases and other waste management
quantities of specific chemicals listed in 40 CFR part 372. Facilities that
meet all three of the following criteria are subject to EPCRA Section 313
release and other waste management reporting:
• the facility has 10 or more full-time employee equivalents (i.e.,
a total of 20,000 hours or greater; see 40 CFR 372.3);
• the facility is included in Standard Industrial Classification
(SIC) Codes 10 (except 1011, 1081, and 1094), 12 (except
1241), 20-39, 4911 (limited to facilities that combust coal
and/or oil for the purpose of generating electricity for
distribution in commerce), 4931 (limited to facilities that
combust coal and/or oil for the purpose of generating
electricity for distribution in commerce), 4939 (limited to
facilities that combust coal and/or oil for the purpose of
generating electricity for distribution in commerce), 4953
(limited to facilities regulated under RCRA Subtitle C, 42
U.S.C. section 6921 etseq.), 5169, 5171, and 7389 (limited to
facilities primarily engaged in solvents recovery services on a
contract or fee basis), or, under Executive Order 13148,
federal facilities regardless of their SIC code; and
• the facility manufactured (defined to include imported),
processed, or otherwise used, in the course of a calendar year,
any toxic chemical in quantities greater than the set threshold.
Under Section 313 the Form R or Form A Certification Statement must be
submitted annually to EPA and to designated State (or Tribal) agencies.
Reports are due by July 1 of each year and cover activities at the facility
during the previous calendar year.
Copies of EPA's Form R and Form A and the instructions for completing the
Forms, and related guidance documents are available from the TRI
Homepage (http://www.epa.gov/tri), or you may call (202) 564-9554 or send
an e-mail to TRIDOCS@epa.gov. Additional information may be obtained
by accessing EPA's TRI Homepage on the Internet at http://www.epa.gov/tri
or calling the EPCRA Call Center (see the TRI Homepage for contact
information).
Since the 1998 Q & A Document was published, the Agency has
promulgated two regulations that affect the TRI program. On October
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EPCRA Section 313 Questions and Answers Addendum
29, 1999, EPA finalized proposed amendments to 40 C.F.R. part 372 (see 64
Fed. Reg. 58666) that, among other things, lowered reporting thresholds for
certain persistent bioaccumlative toxic (PBT) chemicals and added new PBT
chemicals to the Section 313 toxic chemical list. (PBT Rule). On January 17,
2001, EPA finalized proposed amendments to 40 C.F.R. part 372 (see 66
Fed. Reg. 4500) that, among other things, lowered the reporting thresholds
for lead and lead compounds which are subject to Section 313 reporting
requirements. (Lead Rule).
In addition, on April 26, 2000, Executive Order 13148 (E.G. 13148) was
published in the Federal Register (65 FR 24595). E.G. 13148 supersedes
Executive Order 12856, which was published in the Federal Register on
Augusts, 1993 (58 FR41981).
There has also been a legal decision since 1998 that pertains to the criteria
that multi-establishment facilities must use to determine whether the facility
is in a SIC Code that is subject to TRI reporting requirements. The decision
was issued in In Re: Coast Wood Preserving, Inc., EPCRA Appeal No. 02-
01 (May 6, 2003). Further, in Barrick Goldstrike. Inc. v. Browner. 260
F.Supp.2d 28 (D.D.C. 2003), the court issued a ruling that affects de minimis
exemption eligibility. Qs & As concerning the mining industry were not
addressed in this document in light of the decisions in Barrick and National
Mining Association v. U.S. Environmental Protection Agency (Civil No. 97-
N-2665; D. Colo.). EPA's analysis of those decisions can be found at
http://www.epa.gov/tri under "Featured Topics."
As a result of E.O. 13148, and the regulatory actions and the legal decisions
noted above, some of the Qs & As and Directives contained in the 1998 Q &
A Document now are inaccurate or may be misleading. EPA has identified
such Qs & As and Directives in this Addendum to the 1998 EPCRA Section
313 Questions and Answers Document (Addendum) and has revised them as
appropriate so that the guidance reflected therein is accurate and consistent
with current legal interpretations and the Executive Order. The Qs & As and
Directives contained in this Addendum supersede the corresponding Qs & As
and Directives contained in the 1998 Q & A Document. EPA is including a
crosswalk document in the Addendum to assist the regulated community and
other interested parties in identifying the Qs & As and Directives in the 1998
Q & A Document that have been superseded by this Addendum and to
explain the changes made to them.
In most cases, only minor revisions were necessary to ensure that the 1998
Qs & As and Directives are accurate and consistent with current legal
interpretations and the Executive Order. For example, many questions
and/or answers were revised to clarify that the 10,000 pound otherwise use
threshold and the 25,000 pound manufacturing and processing thresholds
apply only to non-PBT chemicals. In one case, the 1998 version of Q & A
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EPCRA Section 313 Questions and Answers Addendum
427 regarding vanadium compounds simply could not be squared with the
regulations and therefore, there is no corresponding Q & A in this
Addendum and the crosswalk in the Addendum states that this Q & A has
been deleted and is no longer valid guidance.
In Coast Wood Preserving, the Environmental Appeals Board (EAB)
concluded that EPA did not provide fair notice of its interpretation of 40
C.F.R. § 372.22(b)(3) that, in determining the appropriate SIC code for a
multi-establishment facility, the value added by each establishment is the
appropriate basis for comparing the relative economic contributions of each
establishment at the facility. The revisions that were made to the 1998 Qs &
As that are affected by the EAB's decision in Coast Wood Preserving clarify
that, under 40 C.F.R. § 372.22(b)(3), facilities should use value-added as the
basis for comparing the relative economic contributions of each
establishment in a multi-establishment^c/7/'(y. In Barrick, the court
concluded that a toxic chemical does not need to be involved in a threshold
activity (i.e., manufacture, process, or otherwise use) to be eligible for the de
minimis exemption. Qs & As and Directives in the 1998 Q & A that indicate
that involvement in a threshold activity is a prerequisite to de minimis
exemption eligibility have been revised accordingly.
The Agency developed this document to facilitate facility reporting and to
provide additional explanation of the reporting requirements. This document
supplements the instructions for completing the Form R and the Alternate
Threshold Certification Statement (Form A). This document is intended
solely for guidance and does not alter any statutory or regulatory
requirements. The document should be used in conjunction with the statute
and regulations but does not supersede them. The guidance provided in this
document addresses the very specific circumstances stated in each question.
Accordingly, the reader should consult other applicable documents (e.g., the
statute, the Code of Federal Regulations (CFR), relevant preamble language,
and the current Toxic Chemical Release Inventory Reporting Forms and
Instructions) when determining whether & facility is subject to EPCRA
Section 313 reporting requirements, and how the facility should report
releases and other waste management quantities of toxic chemicals. If a
conflict exists between guidance provided in this document and the statutory
or regulatory requirements, the conflict must be resolved in favor of the
statute or regulation.
EPA recognizes that activities involving toxic chemicals may vary
significantly from one facility to another. Because it is not possible to
address in a guidance document the specific circumstances that exist at each
facility that may be subject to Section 313 reporting requirements, EPA
intends to apply this guidance in a flexible manner. Similarly, individual
facilities may find that the guidance provided in this document is
inapplicable to their processes or circumstances, and that alternative
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EPCRA Section 313 Questions and Answers Addendum
approaches or information are more accurate and/or more appropriate for
meeting the statutory and regulatory requirements of EPCRA Section 313.
Facilities should therefore use facility-specific information and process
knowledge, where available, to meet the requirements of EPCRA Section
313.
There may be instances where the 1998 Q & A Document and this
Addendum do not sufficiently address & facility's concerns (e.g., an issue
with & facility's specific manufacturing process) with the reporting
requirements of EPCRA section 313. In those instances, the facility should
contact EPA or consult with professional counsel for compliance assistance.
Facilities are also encouraged to contact the Agency with any additional or
clarifying questions about the guidance provided in this document, or if the
facility believes that EPA has incorrectly characterized a particular process
or recommendation.
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EPCRA Section 313 Questions and Answers Addendum
CROSSWALK TABLE BETWEEN 1998 EPCRA SECTION 313 QUESTIONS AND
ANSWERS AND THE ADDENDUM
1998 Q&A
Addendum
Q&A
Description of Update to 1998 Q&A
1
This Q&A has been modified to reflect that the Form A
Certification Statement may only be considered for non-PBT
chemicals listed at 40 CFR section 372.65. Pursuant to 40 CFR
section 372.27, the Form A Certification Statement may not be
considered for the PBT chemicals listed at 40 CFR section
372.28. (See Persistent Bioaccumulative Toxic (PBT)
Chemicals final rule (64 FR 58666, October 29, 1999) and Lead
and Lead Compounds final rule (66 FR 4500, January 17,
2001)).
65
67
68 on pg. 20
69
72
73
These Qs & As clarify EPA's interpretation of 40 CFR section
372.22(b)(3) that multi-establishment facilities should use
"value added" as the basis for comparing the relative values of
different establishments when determining the primary SIC code
for the entire facility. The concept of "value added" has been
applied to these Qs & As. (See Toxic Chemical Release
Reporting final rule (53 FR 4500, 4501, February 16, 1988) and
In Re: Coast Wood Preserving. Inc.. EPCRA Appeal No. 02-01
(May 6, 2003)).
80
This Q&A has been modified to reflect that EO 12856 has been
superseded by EO 13148 (65 FR 24595, April 26, 2000).
89
96
10
97
11
107
12
The activity thresholds are lower for PBT chemicals listed at 40
CFR section 372.28 and therefore, Qs & As throughout the 1998
Q&A Document have been modified to account for the lower
thresholds for PBT chemicals. (See Persistent Bioaccumulative
Toxic (PBT) Chemicals final rule (64 FR 58666, October 29,
1999) and Lead and Lead Compounds final rule (66 FR 4500,
January 17, 2001)).
109
13
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
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EPCRA Section 313 Questions and Answers Addendum
1998 Q&A
Addendum
Q&A
Description of Update to 1998 Q&A
117
118
120
121
122
126
129
132
14
15
16
17
18
19
20
21
Activity thresholds are lower for PBT chemicals listed at 40
CFR section 372.28 and therefore, Qs & As throughout the 1998
Q&A Document have been modified to account for the lower
thresholds for PBT chemicals. (See Persistent Bioaccumulative
Toxic (PBT) Chemicals final rule (64 FR 58666, October 29,
1999) and Lead and Lead Compounds final rule (66 FR 4500,
January 17, 2001)).
145
22
Activity thresholds are lower for PBT chemicals listed at 40
CFR section 372.28 and therefore, Qs & As throughout the 1998
Q&A Document have been modified to account for the lower
thresholds for PBT chemicals. (See Persistent Bioaccumulative
Toxic (PBT) Chemicals final rule (64 FR 58666, October 29,
1999) and Lead and Lead Compounds final rule (66 FR 4500,
January 17, 2001)).
165
166
23
24
Activity thresholds are lower for PBT chemicals listed at 40
CFR section 372.28 and therefore, Qs & As throughout the 1998
Q&A Document have been modified to account for the lower
thresholds for PBT chemicals. (See Persistent Bioaccumulative
Toxic (PBT) Chemicals final rule (64 FR 58666, October 29,
1999) and Lead and Lead Compounds final rule (66 FR 4500,
January 17, 2001)).
169
25
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
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EPCRA Section 313 Questions and Answers Addendum
1998 Q&A
Addendum
Q&A
Description of Update to 1998 Q&A
170
173
185
192
193
197
200
201
26
27
28
29
30
31
32
33
Activity thresholds are lower for PBT chemicals listed at 40
CFR section 372.28 and therefore, Qs & As throughout the 1998
Q&A Document have been modified to account for the lower
thresholds for PBT chemicals. (See Persistent Bioaccumulative
Toxic (PBT) Chemicals final rule (64 FR 58666, October 29,
1999) and Lead and Lead Compounds final rule (66 FR 4500,
January 17, 2001)).
220
221
34
35
Activity thresholds are lower for PBT chemicals listed at 40
CFR section 372.28 and therefore, Qs & As throughout the 1998
Q&A Document have been modified to account for the lower
thresholds for PBT chemicals. (See Persistent Bioaccumulative
Toxic (PBT) Chemicals final rule (64 FR 58666, October 29,
1999) and Lead and Lead Compounds final rule (66 FR 4500,
January 17, 2001)).
226
230
36
37
These Qs & As clarify EPA's interpretation of 40 CFR section
372.22(b)(3) that multi-establishment facilities should use
"value added" as the basis for comparing the relative values of
different establishments when determining the primary SIC code
for the entire facility. The concept of "value added" has been
applied to these Qs & As. (See Toxic Chemical Release
Reporting final rule (53 FR 4500, 4501, February 16, 1988) and
In Re: Coast Wood Preserving. Inc.. EPCRA Appeal No. 02-01
(May 6, 2003)).
274
313
38
39
Activity thresholds are lower for PBT chemicals listed at 40
CFR section 372.28 and therefore, Qs & As throughout the 1998
Q&A Document have been modified to account for the lower
thresholds for PBT chemicals. (See Persistent Bioaccumulative
Toxic (PBT) Chemicals final rule (64 FR 58666, October 29,
1999) and Lead and Lead Compounds final rule (66 FR 4500,
January 17, 2001)).
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EPCRA Section 313 Questions and Answers Addendum
1998 Q&A
Addendum
Q&A
Description of Update to 1998 Q&A
315
40
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
In addition, reference to the threshold activities as a prerequisite
to de minimis exemption eligibility has been removed from this
Q&A.
316
41
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
317
42
318
43
These Qs & As have been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
In addition, reference to the threshold activities as a prerequisite
to de minimis exemption eligibility has been removed from this
Q&A.
321
44
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
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EPCRA Section 313 Questions and Answers Addendum
1998 Q&A
Addendum
Q&A
Description of Update to 1998 Q&A
323
45
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
In addition, reference to the threshold activities as a prerequisite
to de minimis exemption eligibility has been removed from this
Q&A.
325
46
326
47
327
48
These Qs & As have been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
328
49
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
In addition, the answer of 200,000 Ibs in 1998 Q&A 328
represented a mathematical error and has been changed to
2,000,000 Ibs in the Addendum.
329
50
330
51
331
52
These Qs & As have been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
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EPCRA Section 313 Questions and Answers Addendum
1998 Q&A
Addendum
Q&A
Description of Update to 1998 Q&A
334
53
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
In addition, reference to the threshold activities as a prerequisite
to de minimis exemption eligibility has been removed from this
Q&A.
336
54
337
55
339
56
These Qs & As have been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
340
57
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
The example of poly cyclic aromatic compounds (PACs)
category in the 1998 Q&A was changed to arsenic compounds
because PACs are classified as a PBT chemical category listed
at 40 CFR 372.28 and therefore, are not eligible for the de
minimis exemption.
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EPCRA Section 313 Questions and Answers Addendum
1998 Q&A
Addendum
Q&A
Description of Update to 1998 Q&A
354
58
365
59
375
60
376
61
Activity thresholds are lower for PBT chemicals listed at 40
CFR section 372.28 and therefore, Qs & As throughout the 1998
Q&A Document have been modified to account for the lower
thresholds for PBT chemicals. (See Persistent Bioaccumulative
Toxic (PBT) Chemicals final rule (64 FR 58666, October 29,
1999) and Lead and Lead Compounds final rule (66 FR 4500,
January 17, 2001)).
379
62
398
63
421
64
425
65
426
66
427
Deleted
These Qs & As have been modified to reflect that pursuant to
the PBT chemical rulemaking the qualifier for vanadium has
changed from "fume or dust" to "except when contained in an
alloy." In addition, pursuant to the PBT chemical rulemaking
the category of vanadium compounds has been added to the list
of toxic chemicals at 40 CFR section 372.65, but not as a PBT
chemical category. (See Persistent Bioaccumulative Toxic
(PBT) Chemicals final rule (64 FR 58666, October 29, 1999)).
1998 Q&A 427 is no longer valid guidance in light of the
regulatory changes.
453
67
This Q&A has been modified to reflect the change from two to
three delimited categories based on the addition of dioxin and
dioxin-like compounds to the list of toxic chemicals pursuant to
the PBT chemical rulemaking. This Q&A has also been
modified to reflect the addition of two members to the PACs
category pursuant to the PBT chemical rulemaking. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999)).
465
68
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
522
69
Activity thresholds are lower for PBT chemicals listed at 40
CFR section 372.28 and therefore, Qs & As throughout the 1998
Q&A Document have been modified to account for the lower
thresholds for PBT chemicals. (See Persistent Bioaccumulative
Toxic (PBT) Chemicals final rule (64 FR 58666, October 29,
1999) and Lead and Lead Compounds final rule (66 FR 4500,
January 17, 2001)).
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EPCRA Section 313 Questions and Answers Addendum
1998 Q&A
Addendum
Q&A
Description of Update to 1998 Q&A
531
70
This Q&A has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
In addition, reference to the threshold activities as a prerequisite
to de minimis exemption eligibility have been removed from this
Q&A.
545
71
This Q&A has been modified to reflect that the Form A
Certification Statement may only be considered for non-PBT
chemicals listed at 40 CFR section 372.65. Pursuant to 40 CFR
section 372.27, the Form A Certification Statement may not be
considered for the PBT chemicals listed at 40 CFR section
372.28. (See Persistent Bioaccumulative Toxic (PBT)
Chemicals final rule (64 FR 58666, October 29, 1999) and Lead
and Lead Compounds final rule (66 FR 4500, January 17,
2001)).
597
72
Pursuant to the PBT chemical rulemakings, this Q&A has been
modified to reflect that PBT chemicals should be reported at a
level of precision supported by the accuracy of the underlying
data and the estimation techniques on which the estimate is
based. (See Persistent Bioaccumulative Toxic (PBT) Chemicals
final rule (64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
599
73
600
74
604
75
These Qs & As have been modified to reflect that the Form A
Certification Statement may only be considered for non-PBT
chemicals listed at 40 CFR section 372.65. Pursuant to 40 CFR
section 372.27, the Form A Certification Statement may not be
considered for the PBT chemicals listed at 40 CFR section
372.28. (See Persistent Bioaccumulative Toxic (PBT)
Chemicals final rule (64 FR 58666, October 29, 1999) and Lead
and Lead Compounds final rule (66 FR 4500, January 17,
2001)). Additional text was added to Q & A # 75 in the
Addendum to clarify that more than one toxic chemical can be
reported on a single Form A.
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EPCRA Section 313 Questions and Answers Addendum
1998 Q&A
Addendum
Q&A
Description of Update to 1998 Q&A
634
76
This Q&A has been modified to reflect that the qualifier for
vanadium has changed from "fume or dust" to "except when
contained in an alloy" pursuant to the PBT chemical
rulemaking. (See Persistent Bioaccumulative Toxic (PBT)
Chemicals final rule (64 FR 58666, October 29, 1999)).
641
77
642
78
Pursuant to the PBT chemical rulemakings, these Qs & As have
been modified to reflect that PBT chemicals should be reported
at a level of precision supported by the accuracy of the
underlying data and the estimation techniques on which the
estimate is based. (See Persistent Bioaccumulative Toxic (PBT)
Chemicals final rule (64 FR 58666, October 29, 1999) and Lead
and Lead Compounds final rule (66 FR 4500, January 17,
2001)).
Directive 2
Directive 2
This Directive has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
In addition, reference to the threshold activities as a prerequisite
to de minimis exemption eligibility has been removed from this
Directive.
Directive 4
Directive 4
This Directive has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
In addition, reference to the threshold activities as a prerequisite
to de minimis exemption eligibility has been removed from this
Directive.
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EPCRA Section 313 Questions and Answers Addendum
1998 Q&A
Addendum
Q&A
Description of Update to 1998 Q&A
Directive 5
Directive 5
This Directive has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
Additional text was added to section 2 of this Directive to
clarify that individually listed glycol ether compounds such as
2-methoxyethanol are not included in the glycol ether compound
category for purposes of section 313 reporting.
Directive 6
Directive 6
This Directive has been modified to reflect that the de minimis
exemption may only be considered for non-PBT chemicals
listed at 40 CFR section 372.65. Pursuant to 40 CFR section
372.38(a), the de minimis exemption may not be considered for
the PBT chemicals listed at 40 CFR section 372.28. (See
Persistent Bioaccumulative Toxic (PBT) Chemicals final rule
(64 FR 58666, October 29, 1999) and Lead and Lead
Compounds final rule (66 FR 4500, January 17, 2001)).
Directive 7
Directive 7
This Directive has been modified to reflect that the activity
thresholds are lower for PBT chemicals listed at 40 CFR section
372.28. (See Persistent Bioaccumulative Toxic (PBT)
Chemicals final rule (64 FR 58666, October 29, 1999) and Lead
and Lead Compounds final rule (66 FR 4500, January 17,
2001)).
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EPCRA Section 313 Questions and Answers Addendum
Reporting
Criteria,
Form R,
Form A,
Alternate
Threshold
Primary SIC
Code, Multi-
establishment
Multi-
establishment,
Definition of
Facility,
Establishment,
SIC Code
1. Is a facility which meets the employee and toxic chemical activity
thresholds and is in a covered SIC code required to report if it had no
releases of the toxic chemical during the reporting year?
Yes, even if it releases no toxic chemicals into the environment and does not
conduct any other waste management activities involving the listed toxic
chemical, the facility must submit either the Form R or Form A (Alternate
Threshold Certification Statement). If the facility meets the employee and
chemical activity thresholds and is in a covered SIC code, but its annual
reportable amount of a non-PBT chemical does not exceed 500 pounds and
the facility has not manufactured, processed, or otherwise used more than one
million pounds of the toxic chemical, the facility may submit the Form A (a
two-page certification statement) instead of the Form R. However, if the
facility exceeds either the 500 or one million pound limits, it must report on
the Form R. (See Section 5 A of this document on Alternate Threshold
Reporting.)
2. What is the definition of primary SIC code? How can there be more
than one SIC code for a facility'!
A primary SIC code generally represents those goods produced or services
performed by an establishment that have the highest value added. Form R
and the Alternate Certification Statement (Form A) provide space for more
than one SIC code because a facility may be made up of several
establishments each of which may have a different primary SIC code.
3. Clarify the application of SIC codes for facility versus establishment!
The SIC code system classifies businesses on the basis of an establishment,
which is generally a single business unit at one location. Many Section 313
covered facilities will be equivalent to an establishment. If the facility's SIC
code is a covered SIC code, the facility has met the SIC code criterion for
reporting under EPCRA Section 313. However, a reporting^c/7/(y can
encompass several establishments located on a single site or on contiguous or
adjacent sites owned or operated by the same entity. Therefore, a Section
313 facility can be a multi-establishment complex. To determine if a multi-
establishment complex is a covered facility, the owner/operator must
determine the complex's primary SIC code based on the relative value added
of products and services provided by the various establishments. If the
primary SIC code for the facility is a covered SIC code, the facility has met
the SIC code criterion.
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EPCRA Section 313 Questions and Answers Addendum
SIC Code,
Multi-
establishment
Primary SIC
Code,
Multi-activity
Facility
Primary SIC
Code, Multi-
establishment
4. Suppose a facility consists of several establishments, some of which
have primary SIC codes within the covered SIC codes and some of which
have primary SIC codes outside that range. How would this facility
determine if it is covered by EPCRA Section 313?
To determine if a facility is covered by EPCRA Section 313, the facility must
determine if it meets the SIC code criterion. To make this determination, the
facility must report if those establishments that are in the covered SIC codes
have a combined value added of more than 50 percent of the total value
added of services provided or products shipped or produced by the whole
facility, or if one of those covered SIC code establishments has a value added
of services or products shipped or produced that is greater than the value
added of any other establishment in the facility (40 CFR Section
372.22(b)(3)). If the facility determines that the establishments meet this test,
the entire facility has met the SIC code criterion. If the entire facility also
meets the employee and chemical activity thresholds (based on all
establishments at the facility), then the entire facility would be subject to
EPCRA Section 313 reporting.
5. SIC Code 7389 (business services, not elsewhere classified) contains
many diverse activities. How does a facility that conducts more than one
activity in SIC 7389 determine if it is primarily engaged in solvent
recovery, and therefore, covered under EPCRA Section 313?
A facility that conducts several uniquely different activities that are within
SIC code 7389 should identify the value added of the goods or services that
each activity contributes. A facility is considered to be "primarily engaged"
in solvent recovery if the goods or services produced by the solvent recovery
activity have a value added of more than 50 percent of the total value added
of all goods and services produced at the facility, or if the value added of the
goods and services produced by the solvent recovery activity of the facility
are greater than the value added of the goods and services produced by any
other activity at the facility.
6. A multi-establishment facility grows wheat and mills it into flour. At
the agriculture portion of the facility, all of the wheat grain is grown,
harvested and placed into a silo. After leaving the silo, 20 percent of the
wheat grain is sold, while the remaining 80 percent of the wheat grain is
milled into flour and packaged. If the facility farms and sells more than
it mills into flour and sells, is it a covered facility'! What is the primary
SIC code of this facility?
In order to make the facility coverage determination, the facility must
compare the value added of products shipped and/or produced at the two
different establishments (i.e.. agriculture versus the flour processing). The
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EPCRA Section 313 Questions and Answers Addendum
value added of the product produced at the agricultural establishment (SIC
code 0111, not in a covered SIC code} is the market value of all the wheat
grain harvested during the reporting year. The value added of the product
from the milling/packaging establishment (in SIC code 2041, a covered SIC
code) is the value added of the products shipped and/or produced minus the
market value of the wheat grain used to produce the flour. In other words,
you do not double count the value of the wheat grain as part of the value
added of the products from the flour processing operation. If the value-added
of milled flour products is greater than the market value of harvested grain,
then the facility's primary SIC code would be within a covered SIC code and
the facility would be subject to reporting under EPCRA Section 313.
Primary SIC
Code, Multi-
establishment,
Off-site
Services
GOCOs,
Definition of
Facility,
Right-of-Way
7. A. facility has two establishments, one in SIC code 35 (a covered SIC
code), and one in SIC code 70 (not a covered SIC code). In determining
the facility's primary SIC code, the facility must determine the value
added of the services provided and/or products shipped from or
produced by each establishment. Some of the employees who support the
establishment in SIC code 70 work entirely off-site, either at home or at
clients' sites. Should the facility consider this off-site work when
determining the value added of the services provided by SIC code 70?
Yes. In determining the primary SIC code, the facility should consider the
value added of services provided by each establishment, including services
provided by employees who work for that establishment at home or who
service that establishment's products at clients' sites.
8. The definition of facility under EPCRA Section 329(4) includes "all
buildings, equipment, structures, and other stationary items which are
located on a single site or on contiguous or adjacent sites and which are
owned or operated by the same person (or by any person which controls,
is controlled by, or under common control with, such person)." Two
Government-Owned, Contractor-Operated (GOCO) sites are separated
by a street. The GOCOs are owned by the same federal agency, but
operated by different contractors. When, as required by Executive
Order (EO) 13148, the federal agency is making threshold
determinations under EPCRA Section 313, must it consider the two
GOCOs as part of the same federal facility?
Yes. The two GOCOs are considered to be a single federal facility for the
purposes of EPCRA Section 313 threshold determinations and release and
other waste management reporting as required by EO 13148. EPA has
interpreted "contiguous or adjacent sites" to include sites separated only by a
public right-of-way. Therefore, the two GOCOs are considered to occupy
sites that are contiguous or adjacent. Each GOCO should provide any
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EPCRA Section 313 Questions and Answers Addendum
information required by the federal facility in making threshold
determinations and reporting releases and other waste management under
EPCRA Section 313.
EO 13148 does not alter any separate obligation(s) a GOCO may have under
EPCRA and the Pollution Prevention Act (PPA). Private contractors
operating at federal facilities must continue to meet any legal reporting
requirements they have under EPCRA and PPA. Thus, a GOCO that operates
a covered facility under 40 CFR Section 372.22 must file a Form R or an
Alternate Certification Statement (Form A) for each toxic chemical for which
the facility exceeds an activity threshold as specified in 40 CFR Section
372.25.
EO 13148 (65 FR 24595, April 26, 2000) supersedes EO 12856 (August
1993).
Activity
Threshold,
Storage
Manufacture,
Import,
Threshold
Determination
Threshold
Determination
9. A coal mine receives a flotation agent containing a Section 313
chemical in December of 1998, but does not use it until January of 1999.
Is the amount of toxic chemical in the flotation agent considered for
threshold determinations in the 1998 reporting year?
No. Storage in itself of a toxic chemical is not considered a manufacturing.,
processing, or otherwise use activity and, therefore, is not subject to
threshold determinations. However, the facility is required to include any
amounts released or otherwise managed as waste that occur during storage of
the listed toxic chemical, provided a threshold for the same chemical has been
exceeded elsewhere at the facility. When the toxic chemical is used in 1999,
the facility will include the amount of toxic chemical used towards the
applicable otherwise use or processing threshold, whichever is appropriate.
10. If a covered facility manufactures 19,000 pounds, processes 18,000
pounds, and imports 7,000 pounds of toxic chemical X (a non-PBT
chemical) during the reporting year, is it required to report for toxic
chemical X?
Yes. For the reporting year, the facility would have to report for toxic
chemical X because it would have exceeded the manufacture threshold of
25,000 pounds (19,000 (manufactured) + 7,000 (imported) = 26,000). Note
that importing constitutes manufacturing, and therefore, the amounts must be
added together for threshold determinations.
11. Are the thresholds for manufacture and process considered
separately? That is, if a covered facility manufactures 24,000 pounds of
toxic chemical A (a non-PBT chemical) and processes 24,000 pounds of
toxic chemical A, does the facility need to report for toxic chemical A?
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EPCRA Section 313 Questions and Answers Addendum
No. The facility does not have to report because it has not independently
exceeded either threshold. Thresholds are considered separately for
manufacture, process, and otherwise use of the same toxic chemical.
Assuming that no individual threshold is met for chemical A (i.e..
manufacturing., processing, or otherwise use\ the facility does not trigger
reporting for chemical A.
Threshold
Determina-
tion, Metal
Alloy, Mixture
Threshold
Determina-
tion, Metal
Alloy, Article
Exemption, De
Minimis
Exemption
Activity
Threshold
Reclamation,
Processing,
Distribution in
Commerce
12. How does a facility determine the threshold for reporting of a listed
toxic chemical (such as chromium) in a solid piece of steel which it
processes'!
Since steel is a mixture (and not a compound), the processing threshold
determination is made based on the total amount of each toxic chemical
present in the steel. If the toxic chemical is present in a known concentration,
the amount present can be calculated by multiplying the weight of the steel
by the weight percent of the listed toxic chemical. The threshold for
processing chromium is 25,000 pounds.
13. Regarding non-PBT metals in mixtures, such as chromium in an
alloy (stainless steel), how are thresholds and releases and other waste
management activities accounted for in a foundry type operation where
all of the metals are melted down? Could the de minimis and article
exemptions be applied?
For threshold purposes, if the listed non-PBT chemicals in the metals are
processed, otherwise used, manufactured as an impurity (that remains with
the product), or imported below the de minimis levels, then the de minimis
exemption may be taken for that metal in the alloy. However, the article
exemption cannot be taken for this type of foundry operation since in
founding, a metal is melted down and poured into a mold. Consequently, the
resulting metal is not recognizable as its original form.
14. If I manufacture 74,000 pounds of a non-PBT toxic chemical and
otherwise use 9,000 pounds, am I covered?
Yes. The facility has exceeded the manufacturing threshold of 25,000
pounds for the toxic chemical. Releases and other waste management from
all activities including the 9,000 Ibs otherwise used of the toxic chemical at
the facility are reportable.
15. Is the reclamation of elemental mercury from mercury retorting
(e.g., recycled fluorescent lamps, contaminated phosphor powder,
mercury batteries, and other sources) and the subsequent sale of the
recovered mercury (e.g., for use in thermometers and other equipment)
subject to the 10 pound processing threshold?
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EPCRA Section 313 Questions and Answers Addendum
Yes. Mercury retorted from wastes and subsequently distributed into
commerce should be counted towards the 10 pound processing threshold.
Otherwise
Use, Off-site
Waste
Definition of
Otherwise
Use, Activity
Threshold,
Coincidental
Manufacture,
Off-site Waste
16. A covered facility receives a waste containing 13,000 pounds of a
listed, non-PBT chemical. The facility disposes of 5,000 pounds of the
toxic chemical and stabilizes the other 8,000 pounds of the chemical.
Does the facility meet a Section 313 chemical activity?
Until January 1, 1998, this facility would not be manufacturing, processing or
otherwise using the listed toxic chemical. However, beginning January 1,
1998, the facility would be otherwise using the toxic chemical. Because the
facility received the 13,000 pounds of the toxic chemical in wastes received
from off-site for the purposes of further waste management., the amount of the
toxic chemical that is subsequently stabilized or disposed on-site is
considered otherwise used at the facility for the purpose of threshold
determinations. The facility would need to add the amount of the toxic
chemical that is involved in all otherwise use activities to determine whether
the otherwise use threshold of 10,000 pounds for non-PBT chemicals has
been exceeded. In this case, 13,000 pounds of the chemical would be
considered otherwise used.
17. A covered facility, in treating for destruction listed toxic chemical A
(a non-PBT chemical), which it receives from off-site, manufactures
11,000 pounds of chemical B, another listed non-PBT chemical. The
facility subsequently disposes of chemical B on-site. Would the facility
meet the manufacture or otherwise use threshold for chemical B?
This manufacture of chemical B is below the manufacturing activity
threshold of 25,000 pounds. However, after January 1, 1998, the facility
would also be otherwise using toxic chemicals A and B. Included in
activities covered by EPA's revised interpretation of otherwise use is the
disposal of a toxic chemical that is produced from the management of a waste
that is received by the facility. In this example, because the facility received
from off-site a waste containing a chemical that is treated for destruction (i.e.,
chemical A) and during that treatment produced and subsequently disposed of
chemical B, the disposal of chemical B under EPA's revised interpretation
would be considered otherwise used as well as the treatment for destruction
of chemical A. Because the facility disposed of, or otherwise used, 11,000
pounds of chemical B, the 10,000 pound statutory threshold for the otherwise
use of non-PBT chemicals has been met. Thus, the facility would need to
report all releases of, and waste management activities involving chemical B.
If the facility treats for destruction more than 10,000 Ibs of chemical A, it
would also report for this toxic chemical.
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EPCRA Section 313 Questions and Answers Addendum
Activity
Threshold,
Otherwise Use
Activity
Threshold,
Otherwise
Use,
Neutralization
Otherwise
Use,
Treatment for
Destruction,
Phase
Separation
18. A covered facility manufactures 11,000 pounds of chemical A, a listed
non-PBT chemical from the treatment of another toxic chemical which
was received from off-site. The facility disposes of 6,000 pounds of
chemical A and uses 5,000 pounds of chemical A in a non-incorporative,
manufacturing activity at the facility. Does this facility meet an activity
threshold?
Prior to January 1, 1998, this facility would not meet the manufacturing
threshold of 25,000 pounds for chemical A nor would it have met the
otherwise use threshold of 10,000 pounds because it only otherwise used
5,000 pounds. However, after January 1, 1998, the facility would meet the
otherwise use threshold for chemical A. Both the on-site disposal and the
non-incorporative activities are considered to be otherwise use activities.
The on-site disposal of chemical A is included among the various activities
covered by EPA's revised interpretation of otherwise use. The facility would
add the amounts of chemical A involved in both otherwise use activities at
the facility to determine whether they exceed the 10,000 pound otherwise use
threshold for non-PBT chemicals. Since the total amount of chemical A that
is otherwise used is 11,000 pounds, the facility would need to report on all
releases and other waste management activities involving chemical A.
19. A covered facility adds a listed acid to wastewater to neutralize the
wastewater prior to discharge. Is this activity manufacturing, processing,
or otherwise using the toxic chemical?
Because the listed acid is not incorporated into the final product and
distributed in commerce, nor is it created at the facility, the toxic chemical is
otherwise used.
20. If a toxic chemical is derived from the phase separation of wastes
received from off site and that chemical is subsequently incorporated
into a product at the facility and then distributed into commerce, has the
toxic chemical been processed or otherwise used?
If a facility receives materials containing toxic chemicals from off-site for
further waste management and the toxic chemicals are treated for destruction,
stabilized, or disposed on-site, the facility would be otherwise using the toxic
chemicals. However, during phase separation the toxic chemical in the waste
is not actually destroyed. Furthermore, the toxic chemical is incorporated
into a product at the facility and is further distributed in commerce fe.g..
retorted mercury sold for reuse in thermometers and mercury switches).
Thus, as long as the toxic chemical coming from the waste is not stabilized,
treated for destruction, or disposed, it would not be otherwise used because
it is neither treated for destruction nor disposed on site. Because it is
distributed in commerce, it would Reprocessed. Once & facility exceeds a
threshold for a particular toxic chemical, amounts of that chemical that are
released or otherwise managed as a waste must be calculated for all on-site
activities.
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EPCRA Section 313 Questions and Answers Addendum
Otherwise
Use,
Threshold
Determina-
tion,
Fumigants
Activity
Threshold,
Process,
Otherwise
Use, Adhesive,
Process vs.
Otherwise Use
Activity
Threshold,
Otherwise
Use, Solvents
Activity
Threshold,
Otherwise Use
Activity
Threshold,
Process,
Repackage
21. Must releases of listed toxic chemicals used as fumigants be reported
if the other criteria and thresholds are met?
Yes. Fumigant use would be subject to the otherwise use threshold.
22. A. facility covered under EPCRA Section 313 manufactures shoes.
During production the facility uses adhesives that contain solvents such
as toluene. Due to the inefficiency of the process, 20 percent of the
solvent remains behind in the shoes when they are sold in commerce.
Would the facility count the amount of solvent remaining in the shoes
toward the processing threshold?
No. The amount of solvent used in the adhesive would count toward the
otherwise use threshold. Since the toxic chemical does not function as a
component of the shoe, it would not be considered processed. Thus, the
facility would file if it meets an otherwise use threshold for the toxic chemical
in the adhesive.
23. If a solvent that is a listed toxic chemical is used to clean an
apparatus but does not become part of the final product, is the chemical
covered for reporting purposes under EPCRA Section 313?
If a solvent is not incorporated into a product distributed in commerce, then
for the purposes of Section 313, it would be considered otherwise used. It
would be subject to reporting if used in quantities exceeding the otherwise
use threshold.
24. A covered facility uses paint thinners in its operations. The thinners
are evaporated or baked out of the finished painted products. Are those
chemicals subject to Section 313 regulations?
If the chemical evaporates or is baked out of a finished coating, it has been
otherwise used.
25. Does the placing of a bulk liquid containing a small percentage of a
Section 313 toxic chemical into small bottles for consumer sale constitute
a reportable/threshold activity of the mixture?
Yes, repackaging for distribution in commerce is a type of processing (40
CFR Section 372.3). If the bulk liquid contains a Section 313 listed non-PBT
chemical in excess of the de minimis level or a listed PBT chemical at any
concentration, the toxic chemical in the liquid would have to be factored into
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EPCRA Section 313 Questions and Answers Addendum
calculations in determining whether the processing threshold is exceeded for
that toxic chemical.
Repackaging,
Processing
Activity
Threshold,
Process,
Otherwise
Use, Paint
Coincidental
Manufacture,
Byproduct,
Threshold
Determina-
tion,
Concentration
Information
Activity
Threshold,
Process, Fuel
26. A covered facility receives a chemical in bulk and repackages it into
smaller containers that are sent to consumers. Are amounts repackaged
considered toward an activity threshold?
Amounts of the toxic chemical that a covered facility repackages for
distribution in commerce must be considered toward the processing
threshold.
27. Paint containing listed toxic chemicals is applied to a product and
becomes part of an article. Does the processing threshold apply? What
about the volatile toxic chemicals from the painting operation - are they
otherwise used"!
Yes. This is a case in which different listed toxic chemicals in the same
mixture may have different uses and therefore, different thresholds. The
listed toxic chemicals that are incorporated as part of the coating are
processed, whereas the volatile solvents in the paint are otherwise used
because their function is such that they do not become incorporated into the
article.
28. A listed toxic chemical is manufactured as part of a mixture which is
a byproduct. The facility does not know the specific concentration of the
listed toxic chemical in this byproduct. For determining the threshold
for Section 313, does the facility include this byproduct without knowing
the specific concentration of the listed toxic chemical?
Because the reporting facility is manufacturing the toxic chemical mixture
on-site, the facility is required to calculate the amount of the toxic chemical
coincidentally manufactured during the reporting year based upon a
reasonable estimate of the percentage of the toxic chemical in the mixture.
This quantity is aggregated to determine if the facility exceeds the threshold
for manufacturing.
29. A covered facility manufactures and repairs airplanes. Prior to
beginning any repair work, any fuel remaining in the airplane's fuel
tanks is emptied by service personnel at the facility. After the repairs are
completed, the airplane is refueled with fuel removed from the airplane's
fuel tanks and/or new fuel. Should the owner/operator of the
manufacturing and repair facility consider the toxic chemicals present in
the fuel when making Section 313 threshold and release and other waste
management calculations?
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EPCRA Section 313 Questions and Answers Addendum
Yes. For purposes of EPCRA Section 313 threshold determinations and
release and other waste management calculations, the listed toxic chemicals
present in the fuel are considered to be processed because they are being
repackaged and further distributed in commerce. Thus, the listed toxic
chemicals present in the fuel are subject to the processing thresh old.
Otherwise
Use,
Threshold
Determina-
tion,
Refractory
Brick
Activity
Threshold,
Process,
Reclamation,
Solvents
30. Refractory brick containing lead is installed in a reaction vessel. Is
the lead in the brick considered otherwise used for purposes of EPCRA
Section 313? Also, are releases of lead from the brick during the
previous reporting year subject to release reporting on the Form R if no
new bricks are added during the reporting year?
The lead contained in the bricks is considered otherwise used since it is not
incorporated into the final product. The facility would count the amount of
lead in the bricks that are added to the reaction vessel only for the year in
which the bricks are installed. In answer to the second question, if the 100
pound threshold is exceeded, then all releases and other waste management
of lead would be reported from both the newly added bricks and those
installed in previous years. Neither the lead contained in the refractory bricks
in the inventory (i.e., not yet installed), nor the lead in place, contained in
bricks (i.e.. installed in a previous year) are to be included in threshold
determinations for the reporting year in question. If no bricks are installed
during the reporting year, and lead is not used elsewhere at the facility., then a
report would not be required.
31. A reclamation/aci'/iYy receives waste solvents containing an EPCRA
Section 313 toxic chemical from a separate facility that generated the
wastes (the generating/aci/iYy). The reclamation/aci/iYy reclaims the
listed toxic chemical and returns it, as a product, to the generating
facility. For the purpose of EPCRA Section 313 threshold
determinations, is the reclamation facility processing the listed toxic
chemical?
Yes. By reclaiming the listed toxic chemical and returning it to the generator,
the reclamationyac/7/'(y has prepared the chemical for distribution in
commerce by incorporating the chemical into a product (i.e.. the reclaimed
toxic chemical). Therefore, the reclamation^c/7/'(y '^processing the toxic
chemical in the waste solvent it receives. Assuming the reclamation facility
is a covered facility., it is required to report under EPCRA Section 313 for the
toxic chemical if it exceeds an activity threshold (e.g.. processing] during the
course of a reporting year.
10
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EPCRA Section 313 Questions and Answers Addendum
Process,
Intracompany
Transfer,
Formalde-
hyde,
Economic
Benefit
Process,
Intracompany
Transfer,
Economic
Benefit
Import,
Purchasing
Agent
32. A. facility covered under EPCRA Section 313 uses formaldehyde as
an ingredient in feedstock. The feedstock is sent for use to another
facility under common ownership. The preparing/aci/iYy does not
receive direct compensation for the product, nor is the product
distributed to the general public. Does such a transfer of a listed toxic
chemical, after its preparation, to another facility under common
ownership constitute distribution in commerce and thus need to be
considered in threshold determinations for reporting under EPCRA
Section 313?
Yes. Under EPCRA, process means the preparation of a listed toxic
chemical., after its manufacture, for distribution in commerce (40 CFR
Section 372.3). Distribution in commerce includes any distributive activity
in which benefit is gained by the transfer, even if there is no direct monetary
gain. Listed toxic chemicals that are shipped from one facility to another
facility under common ownership are considered to be distributed in
commerce. Although the chemical in the product is not distributed to the
general public, the preparing facility does derive economic benefit by
transferring the listed toxic chemical, as both facilities are under common
ownership. The amount of listed toxic chemical prepared at the facility must
be counted towards the processing threshold.
33. Company A stores oil at their Storage Facility 1. Company A
transfers oil from Storage Facility 1 to their Storage Facility 2 (a
separate/aci'/iYy for EPCRA Section 313 purposes). From Storage
Facility 2, the oil is distributed to customers. Does the transfer from
Storage Facility 1 to Storage Facility 2 constitute processing on the part
of Storage Facility 1?
Yes. Under EPCRA Section 313, processing means the preparation of a
listed toxic chemical after its manufacture, for distribution in commerce (40
CFR Section 372.3). Distribution in commerce includes any distributive
activity in which benefit is gained by the transfer, even if there is no direct
monetary gain. Listed toxic chemicals that are shipped from one facility to
another facility under common ownership are considered to be distributed in
commerce. Although the chemical in the product is not distributed to the
general public, the preparing facility does derive economic benefit by
transferring the listed toxic chemical, as both facilities are under common
ownership. The amount of listed toxic chemical prepared at the facility must
be counted towards the processing threshold.
34. The corporate office for a chemical distribution company directly
purchases products which will be shipped to several of its chemical
distribution facilities. The corporate purchasing department purchases
one of these products, which contains a section 313 chemical, from a
foreign source. The product is shipped directly to one of its chemical
distribution/aci/ift'es. Did the individual facility cause the importation of
11
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EPCRA Section 313 Questions and Answers Addendum
the section 313 chemical thereby requiring it to apply the manufacturing
threshold to the quantities of this material received by the facility in the
reporting year?
If the chemical distribution facility that actually received the product did not
have any input regarding the quantity or identity of the toxic chemical, the
facility did not cause the importation of the toxic chemical in the product and
does not have to apply the listed chemical in the product to its manufacturing
threshold. To be considered an importer the facility receiving the material
from a foreign source must have imported or "caused the material to be
imported." If the ordering^7c/7/'(y receives the shipment, then the ordering
facility has imported the listed toxic chemicals and must consider these
amounts toward their manufacturing thresholds. However, if the ordering
facility, on its own initiative, directs another facility to receive the shipment,
and that other facility has no input in deciding whether it will receive the
toxic chemical, then the receiving^c/7/'(y has not imported the shipment and
the orderingyac/7/'(y has also not imported the shipment for purposes of
EPCRA Section 313 because the listed toxic chemicals were not brought on
site of the ordering facility.
Import, Broker
Auxiliary
Facility,
SIC Code
35. A facility did not specify a source for a material broker to obtain a
listed toxic chemical, but the facility learns that the only U.S.
manufacturer of the chemical has gone out of business. Therefore, is the
facility importing the chemical, making the facility subject to the
manufacturing threshold?
Yes. The facility knows that it has caused the listed toxic chemical to be
imported to the U.S. because there are no U.S. sources. Therefore, the
amount of the chemical that is caused to be imported by the facility through a
broker must be included within the manufacturing threshold determination
for that listed toxic chemical.
36. An auxiliary wastewater treatment plant, which is not a RCRA
Subtitle C facility, has taken on the SIC code of a covered facility because
it primarily services a covered facility. Does the facility where the
treatment plant is located have to report even if the rest of the
establishments at that facility are not in the covered SIC codes'!
A facility must report only if it meets the employee, SIC code and activity
criteria. As long as the SIC code for the wastewater treatment plant is not the
primary SIC code for the facility, the SIC code criterion is not met.
Therefore, the facility as a whole need not report. The covered facility
producing the listed toxic chemical in the waste must report the off-site
transfer to the facility containing the wastewater treatment plant.
12
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EPCRA Section 313 Questions and Answers Addendum
Auxiliary
Facility, SIC
Code, Multi-
establishment,
Laboratory
Structural
Component
Exemption,
Fuel
Laboratory
Activity
Exemption,
Process
37. Is my facility covered by EPCRA Section 313 if the value added of
laboratory research at my facility is greater than 50 percent of the total
value added of goods and services produced at my facility!
If the research laboratory is a separate establishment from the other activities
at the facility and its SIC code is not in a covered SIC code, then the 50
percent test is used to determine if the whole facility is in the covered SIC
codes (40 CFR Section 372.22). In this case, the facility would not be subject
to reporting because the primary SIC code is not within the covered SIC
codes. However, if the laboratory is within the covered SIC codes because it
is an auxiliary establishment providing research to support operations in the
covered SIC codes, then the facility would be covered by Section 313.
38. An EPCRA Section 313 covered facility uses a fuel-powered paint
sprayer for the sole purpose of painting the facility's structure. The
listed toxic chemicals within the paint used to maintain the facility's
appearance are exempt from EPCRA Section 313 threshold
determination and release and other waste management reporting
requirements under the structural component exemption (40 CFR
Section 372.38(c)(l)). The fuel used to power the paint sprayer also
contains listed toxic chemicals reportable under EPCRA Section 313.
Must the listed toxic chemicals in the fuel be applied toward the
otherwise use threshold?
No. The listed toxic chemicals are exempt from EPCRA Section 313
threshold determinations and release and other waste management reporting
requirements. Although the structural component exemption most commonly
applies to toxic chemicals incorporated into & facility's physical structure, the
exemption also extends to toxic chemicals whose sole use derives from or is
associated with an exempt use. Examples of toxic chemicals exempt in this
manner include solvents used to clean paint brushes that were used to paint a
facility's structure and fumes generated from the welding of non-process
related pipes during installation at a facility. Be aware that the combustion of
fuels may coincidentally manufacture Section 313 toxic chemicals. Such
coincidental manufacture is not eligible for de minimi s limitations (see the
directive on de minimi s) or the structural component exemption and amounts
produced must be compared against the manufacturing threshold. The EPA
publication, Toxic Air Pollutant Emission Factor - A Compilation of Selected
Air Toxic Compounds and Sources (EPA 45/2-88-006a) contains emission
factors for many specific compounds emitted during fuel combustion.
39. After otherwise using an EPCRA Section 313 toxic chemical in a
laboratory setting under the supervision of a technically qualified
individual, a covered facility sends the toxic chemical in waste off-site to
be recycled. The facility also processes the same chemical elsewhere but
below the processing threshold. The facility is eligible for the laboratory
activity exemption for the amount of the listed toxic chemical otherwise
13
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EPCRA Section 313 Questions and Answers Addendum
used, processed, and manufactured in the laboratory and amounts of the
listed toxic chemical released from the laboratory. (40 CFR Section
372.38(d)) Is the facility required to count the amount of the listed toxic
chemical sent off-site for recycling from the laboratory toward the
processing threshold?
Covered facilities manufacturing, processing or otherwise using a toxic
chemical in a laboratory setting under the supervision of a technically
qualified individual, need not consider those quantities of the toxic chemical
when determining EPCRA Section 313 chemical activity thresholds and
calculating releases and other waste management amounts. The facility is
eligible for the laboratory activity exemption for the amount of listed toxic
chemical otherwise used, processed, and manufactured in the laboratory and
amounts of the listed toxic chemical released or otherwise managed as waste
from the laboratory. The covered facility is not required to count the amount
of listed toxic chemical laboratory waste sent off-site for recycling toward the
processing threshold. Any other non-exempt quantities of the toxic chemical
manufactured, processed or otherwise used on-site, however, should be
considered towards the appropriate threshold to see if the facility triggers
reporting for that toxic chemical.
De Minimis
Exemption,
Trade Name
Product
40. Please explain the de minimis concentration limitation under Section
313, and its application to mixtures and trade name products (40 CFR
Section 372.38(a))?
The de minimis exemption allows covered facilities to disregard certain
minimal concentrations of listed non-PBT chemicals in mixtures or trade
name products when making threshold determinations and release and other
waste management determinations. The de minimis exemption does not
apply to the manufacture of a listed toxic chemical except if that listed toxic
chemical is manufactured as an impurity and remains in the product
distributed in commerce below the appropriate de minimis level or is
imported below de minimis concentrations. The de minimis exemption does
not apply to a byproduct manufactured coincidentally as a result of
manufacturing, processing, otherwise use, or any waste management activity.
The de minimis exemption does not apply to the PBT chemicals listed at 40
CFR section 372.28.
When determining whether the de minimis exemption applies to a listed non-
PBT chemical, the owner/operator should consider only the concentration of
the listed toxic chemical in mixtures and trade name products. If the listed
non-PBT chemical in a mixture or trade name product is manufactured as an
impurity or imported, processed, or otherwise used and is below the
appropriate de minimis concentration level, then the quantity of the listed
toxic chemical in that mixture or trade name product does not have to be
applied to threshold determinations nor included in release or other waste
management calculations. If a listed non-PBT chemical in a mixture or trade
name product meets the de minimis exemption, all releases and other waste
14
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EPCRA Section 313 Questions and Answers Addendum
management activities associated with the listed toxic chemical in that
mixture or trade name product are exempt from EPCRA Section 313
reporting. It is possible to meet an activity (e.g., processing) threshold for a
toxic chemical on afacility-wide basis, but not be required to calculate
releases or other waste management quantities associated with a particular
mixture or trade name product because that mixture or trade name product
contains the non-PBT chemical below the de minimis level.
Once a listed toxic chemical concentration is above the appropriate
de minimis concentration, threshold determinations and release and other
De Minimis
Exemption,
Otherwise Use
waste management calculations must be made, even if the chemical later falls
below the de minimis level in the same process stream. Thus, all releases
and other quantities managed as waste that occur after the de minimis level
has been exceeded are subject to reporting. If a listed toxic chemical in a
mixture or trade name product above the de minimis level is brought on-site,
the de minimis exemption never applies.
The de minimis concentration level is consistent with the OSHA Hazard
Communication Standard requirements for development of Material Safety
Data Sheets (MSDSs). The de minimis level is 1.0 percent except if the listed
toxic chemical is an OSHA-defined carcinogen. The de minimis level for
OSHA-defmed carcinogens is 0.1 percent. For mixtures or other trade name
products that contain one or more members of a listed Section 313 toxic
chemical category, the de minimis level applies to the aggregate
concentration of all such members and not to each individually. The list of
toxic chemicals in the publication Toxic Chemical Release Inventory
Reporting Forms and Instructions for the current reporting year contains the
de minimis values for each of the non-PBT chemicals and chemical
categories.
This de minimis exemption applies solely to mixtures and other trade name
products. EPA's long-standing interpretation has been that mixture does not
include waste. Therefore, the de minimis exemption cannot be applied to
toxic chemicals in a waste.
41. A metal mining/acuity receives ash that it directly incorporates in
concrete which it then uses on-site to form cement blocks. Is this direct
use of ash eligible for the de minimis exemption?
The use of ash as a component of a mixture (concrete) that is otherwise used
on-site to construct cement blocks constitutes an otherwise use of a material
containing listed toxic chemicals and such amounts must be counted toward
the facility's otherwise use of those chemicals. In this case, the ash is not
considered a waste because it is not managed as a waste. Thus, the listed
non-PBT chemicals contained in the ash are eligible for the de minimis
exemption if they do not exceed the de minimis concentrations.
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EPCRA Section 313 Questions and Answers Addendum
De Minimis
Exemption,
Solvent
Recovery
De Minimis
Exemption,
Mixture,
Impurity,
Waste,
Byproduct
De Minimis
Exemption,
Metal
Compounds
De Minimis
Exemption
42. A covered facility receives a spent solvent, recovers the solvent and
sells the recovered solvent in commerce. Is the recovered solvent
considered a waste, and if not, is the reusable solvent considered a
product? At what point might the solvent be eligible for the de minimis
exemption?
The recovery facility must consider the amount of the material that it feeds
into the recycling operation toward the facility's processing threshold. The
solvent is part of a waste (not usable in the form received) and therefore the
amount processed is not eligible for the de minimis exemption until the
recovery is complete and the solvent is no longer subject to further waste
management activities. Once the recovery is complete, the solvent is no
longer a waste and thus the recovery facility may take the de minimis
exemption for amounts of non-PBT chemicals subsequently prepared for
distribution in commerce. The purchasing facility considers the recovered
solvent as a new product and its subsequent use of the solvent may be eligible
for the de minimis exemption. However, if the amount of solvent processed
prior to the point of which it was eligible for the de minimis exemption was
enough to exceed a reporting threshold, the fact that the solvent subsequently
became eligible for the de minimis exemption does not remove the reporting
requirement.
43. Does the de minimis exemption apply regardless of whether a listed
non-PBT chemical is present in a mixture as an impurity or separated
out as a byproduct? Does it apply to toxic chemicals in waste?
The de minimis exemption may be considered for non-PBT chemicals that
are manufactured as impurities that remain in the product for distribution.
The de minimis exemption does not apply to listed toxic chemicals that are
manufactured as a byproduct regardless of whether the byproduct is a waste.
44. Does the de minimis exemption apply to the parent metal component
of a compound in a mixture for Section 313 reporting?
No. For threshold determinations, the weight percent of the whole compound
in the mixture is used. In general, the de minimis value for compounds is one
percent, unless the particular compound is itself an OSHA carcinogen and
then the de minimis level is 0.1 percent. The de minimis exemption does not
apply to the PBT chemicals listed at 40 CFR section 372.28.
45. We are taking part in an experimental shale oil extraction process.
When the shale is extracted, concentrations of a non-PBT chemical are
present in trace amounts in the shale far below the de minimis
concentration. Does the de minimis exemption apply?
16
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EPCRA Section 313 Questions and Answers Addendum
Yes, the de minimis exemption applies to the listed non-PBT chemical
present in the shale.
De Minimis
Exemption,
De Minimis
Level,
Carcinogen
46. What is the basis for determining that a toxic chemical is subject to
the 0.1 percent de minimis level rather than the 1.0 percent de minimis
level, and when do changes in toxic chemical de minimis levels take
effect?
In the final rule (53 FR 4500, Feb. 16, 1988) that implements the reporting
requirements of EPCRA Section 313, EPA adopts a de minimis exemption
which permits facilities to disregard de minimis levels of listed non-PBT
chemicals for threshold determinations and release and other waste
management calculations. The regulations adopt a 0.1 percent de minimis
level for chemicals that are carcinogens, as defined in 29 CFR Section
1910.1200(d)(4),as follows:
"(4) Chemical manufacturers, importers and employers evaluating chemicals
shall treat the following sources as establishing that a chemical is a
carcinogen or potential carcinogen for hazard communication purposes:
(I) National Toxicology Program (NTP), Annual Report on Carcinogens
(latest edition);
(ii) International Agency for Research on Cancer (IARC) Monographs
(latest editions); or
(iii) 29 CFR Part 1910, Subpart Z, Toxic and Hazardous Substances,
Occupational Safety and Health Administration."
Therefore, once a chemical's status under NTP, IARC, or 29 CFR Part 1910,
Subpart Z, indicates that the chemical is a carcinogen or potential carcinogen,
the reporting facility may disregard levels of the chemical below the 0.1
percent de minimis concentration, provided that the other criteria for the
de minimis exemption are met. For convenience purposes, EPA refers to
these chemicals as the "OSHA carcinogens."
If in reporting year "A," IARC or NTP classifies a chemical as a probable or
known carcinogen (thus lowering the EPCRA Section 313 de minimis
concentration from 1.0 to 0.1 percent), the lower de minimis concentration
for the purposes of reporting would be applicable starting with reporting year
"A+l." For example, vinyl acetate was classified as a group 2B chemical by
IARC in 1995, so the lower de minimis level of 0.1 percent applied starting
with the 1996 reporting year (i.e.. it was effective as of January 1, 1996, for
reports due July 1, 1997).
Suppliers would need to notify their customers of such changes with the first
shipment in the year in which the change is applicable to reporting. If, as in
the vinyl acetate example, the classification changes in 1995, then the
17
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EPCRA Section 313 Questions and Answers Addendum
supplier would notify customers with the first shipment on or after January 1,
1996.
De Minimis
Exemption,
Release
Reporting
De Minimis
Exemption,
Concentration
Range
De Minimis
Exemption,
Concentration
Range
47. If a covered facility has process streams with less than 1 percent (or
0.1 percent for carcinogens) of a listed non-PBT chemical, do fugitive
releases from these streams have to be included in release calculations?
The de minimis exemption applies to process streams when a starting
material for the process is a mixture containing less than 1 percent (or 0.1
percent) of a listed non-PBT chemical. If the process stream is exempt under
de minimis, releases from the stream are not reported on the Form R.
48. A covered facility uses a chemical mixture that contains a listed
Section 313 non-PBT chemical. The concentration of the listed toxic
chemical is given as a range on the Material Safety Data Sheet (MSDS). If
the maximum and minimum concentrations are above and below the
de minimis concentration level, how can the facility determine quantities
for Section 313 compliance?
The amount of the listed toxic chemical in the mixture that is at or above the
de minimis level, and therefore counts towards the threshold, can be assumed
to be proportional to the ratio of the amount at or above de minimis
concentration to the amount of the total concentration range. The
concentration of the chemical in the mixture that is not exempt is the average
of the de minimis level and the maximum concentrations.
For example, assume that & facility manufactures 10 million pounds of a
mixture containing 0.25-1.20 percent of a toxic chemical that is subject to a 1
percent de minimis level. The quantity of the mixture subject to reporting is:
10.000.000 Ibsx (1.20- 0.99} =
(1.20- 0.25)
2,210,526 Ibs
Non-exempt mixture
This 2,210,526 pounds of non-exempt mixture is multiplied by the average
concentration above the de minimis. which is 1.1 percent, or
1.20 + 0.99 = 0.011
2
2,210,526 x 0.011 =24,316 pounds
In this example, the amount of chemical that counts toward a threshold is
24,316 pounds.
49. A covered facility processes a mixture of chemicals which includes a
non-carcinogenic listed non-PBT chemical present between
concentrations of 0.5-1.0 percent, as stated on the MSDS provided with
the mixture. Is the listed toxic chemical in the mixture eligible for the
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EPCRA Section 313 Questions and Answers Addendum
De Minimis
Exemption,
Waste
de minimis exemption? If not, how would a facility make a threshold
determination for a toxic chemical whose concentration ranges from
below the de minimis level to the de minimis level?
A listed toxic chemical with a concentration range that has an upper bound
equal to the de minimis level is not exempt from reporting under EPCRA
Section 313. The exception applies only if the chemical concentration is
below the de minimis level. The amount of the listed toxic chemical in the
mixture that is at or above the de minimis level, and therefore counts towards
the threshold, is proportional to the ratio of the amount at or above the
de minimis concentration to the amount of the total concentration range. The
concentration of the chemical in the mixture that is not exempt is the average
of the de minimis level and the maximum concentration, which in this case is
the same. The fraction of the listed toxic chemical that is not exempt is the
fraction that is at the de minimis level, i.e.. 1 percent. The fraction that is
exempt is that below the de minimis level, which is 0.5 percent - 0.9 percent
(one significant figure).
For example, assume that a facility manufactures 10 million pounds of a
mixture containing 0.5-1.0 percent of a toxic chemical that is subject to a 1
percent de minimis exemption. The quantity of the mixture subject to
reporting is:
10.000.000 Ibsx (i.Q- 0.9} =
(1.0- 0.5)
2,000,000 Ibs
Non-exempt mixture
50. A raw material contains less than the de minimis level of a listed
non-PBT chemical. During processing of the listed toxic chemical, its
concentration remains below de minimis. However, the concentration of
the listed toxic chemical in the wastestream that results from that
processing activity is above the de minimis concentration level for that
toxic chemical. The wastestream containing that listed toxic chemical is
disposed in an on-site landfill. Should the toxic chemical handled in the
process line be included in the facility's threshold determination? Do the
quantities of the listed toxic chemical in wastestreams that are generated
from this process require reporting? What about the listed toxic
chemical present in the wastestream that is above the de minimis level?
No. The de minimis exemption can be applied to the listed non-PBT
chemical in the raw material that is processed. Because the de minimis
exemption can be taken, the quantities processed do not have to be applied to
the processing threshold for that toxic chemical at the facility and quantities
of the listed toxic chemical that are released or otherwise managed as waste
as a result of this specific processing activity are exempt from release and
other waste management calculations. The exemption applies even if the
listed toxic chemical is concentrated above the de minimis level in the
wastestream resulting from that processing activity.
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EPCRA Section 313 Questions and Answers Addendum
Ash,
De Minimis
De Minimis
Exemption,
Byproduct
De Minimis
Exemption,
Waste
51. A covered facility combusts coal in a combustion unit. The coal
contains a non-PBT chemical below de minimis amounts. During
combustion, chemicals are manufactured. The ash containing the toxic
chemicals is generated from the combustion of the coal. The ash is then
sold to another facility for direct reuse in the manufacture of concrete
blocks. If the toxic chemicals in the ash are below the appropriate
de minimis concentration, are they eligible for the de minimis
exemption?
The toxic chemical in the coal being combusted should be considered towards
the facility's otherwise use threshold and this activity is eligible for the
de minimis exemption. The toxic chemicals that are manufactured as a result
of the combustion/roce^ are byproducts and therefore not eligible for the
de minimis exemption. The chemicals in the ash that is sold for direct reuse
off-site are considered processed. After combustion, when the facility is
preparing the toxic chemicals in ash for distribution in commerce, the non-
PBT chemicals are eligible for the de minimis exemption.
52. A small quantity of a listed toxic chemical is manufactured in a
wastestream. Are facility owners/operators required to include the
amount of the listed toxic chemical present in the wastestream as part of
the threshold determination if the concentration of the listed toxic
chemical in the wastestream is below the de minimis level?
Yes. This de minimis exemption applies solely to non-PBT chemicals in
mixtures. EPA's long-standing interpretation has been that mixture does not
include waste. Also, generally, de minimis does not apply to listed toxic
chemicals that & facility manufactures. The de minimis exemption cannot be
applied to listed toxic chemicals manufactured as a byproduct.
53. A covered facility otherwise uses a toxic chemical that is above the de
minimis concentration in a mixture. How does the de minimis exemption
apply to listed toxic chemical residues from this use contained within
used or spent containers that the facility sends off-site for disposal"!
The de minimis exemption cannot be applied to quantities of the listed toxic
chemical in used or spent containers that are sent off-site for disposal because
these quantities are being managed as a waste and the de minimis exemption
does not apply to wastes. The de minimis exemption can be applied to a
listed non-PBT chemical in a mixture or trade name products that is
processed, otherwise used, manufactured as an impurity (that remains with
the product), or imported, provided that the listed toxic chemical is present in
the mixture or trade name product below the de minimis concentration level.
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EPCRA Section 313 Questions and Answers Addendum
De Minimis
Exemption,
Petroleum
Refining
De Minimis
Exemption,
Air Releases,
Storage Tanks
Ammonia,
De Minimis
Exemption
54. In petroleum refining processes, mixtures such as crude oils,
petroleum products, and refinery process streams may contain trace
amounts of listed toxic chemicals. During the refining process, these
mixtures may undergo beneficiation activities which would result in the
listed toxic chemicals being concentrated to levels that exceed the
de minimis levels. Would the de minimis exemption apply to these
processes/
The de minimis exemption would apply to the non-PBT chemicals until they
are concentrated above the applicable de minimis level. For purposes of
threshold determinations and release and other waste management
calculations, the facility would account for a listed toxic chemical from the
first point in the process in which the concentration of the toxic chemical
meets or exceeds the applicable de minimis level for that toxic chemical, in
the process mixture.
55. As a petroleum refiner, do we have to estimate air releases of
chemicals from storage tanks containing crude oil if the concentration of
the chemical is below de minimis level? We understand that the
amounts of these chemicals would be counted towards threshold since,
after storage, we are extracting and purifying them to concentrations
above de minimis.
Facilities that receive chemicals into the plant at concentrations below
de minimis have to report releases and other waste management activities
from that point in the process when the chemical's concentration exceeds
de minimis level. This facility would not have to report air emissions from
their crude oil tanks for the chemicals present in oil below de minimis. For
those above de minimis. they must report releases and other waste
management activities. The de minimis exemption does not apply to the PBT
chemicals listed at 40 CFR section 372.28.
56. A covered facility places ammonium chloride in water, and
manufactures aqueous ammonia for use on-site. Does the de minimis
exemption apply to this activity?
No. The facility cannot take the de minimis exemption for this activity
because the facility manufactured aqueous ammonia. The de minimis
exemption does not apply to the manufacture of a non-PBT chemical, unless
the toxic chemical is manufactured as an impurity and remains in the product
distributed in commerce. Since the facility used the aqueous ammonia on-site
and the ammonia is not an impurity that remains in a product distributed in
commerce, the de minimis exemption does not apply.
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EPCRA Section 313 Questions and Answers Addendum
De Minimis
Exemption,
Compound
Category,
Delimited
Category
Article
Exemption,
Process,
Batteries
Article
Exemption,
Sheet Metal
57. When determining the de minimis level for members of an EPCRA
Section 313 category, the total weight of all the members of the category
in the mixture must be counted and compared to the applicable
de minimis level. How would a facility determine the de minimis level for
a mixture containing members of a category, such as the arsenic
compounds category, where there are different de minimis levels within
the category?
For categories in which there are different de minimis levels within the
category, two calculations are done. First, the weight of all members of the
category in the mixture that have a 0.1 percent de minimis is determined and
compared to the 0.1 percent de minimis level. Second, the weight of all
members of the category in the mixture (both those with 0.1 percent and 1.0
percent de minimis) is determined and compared to the 1.0 percent
de minimis. If only the first de minimis calculation is exceeded then only
those chemicals with the 0.1 percent de minimis must be included in
threshold and release and other waste management determinations.
Therefore, category members with the 1.0 percent de minimis would be
excluded from threshold and release and other waste management
determinations if only the first de minimis calculation is exceeded. If the
second de minimis calculation is exceeded then all of the category members
in the mixture must be included in threshold determinations and release and
other waste management calculations. The de minimis exemption does not
apply to the PBT chemicals listed at 40 CFR section 372.28.
58. If an automobile manufacturer receives finished car batteries and
places these batteries into the cars they sell, must the automobile
manufacturer report the lead which is incorporated in the battery?
If the car battery is completely sealed while present at the facility, it would be
considered an article, and thus would be exempt from EPCRA Section 313
reporting. If lead is released from the batteries under normal processing at
the facility, as might occur during maintenance of the battery, the release
would negate the article exemption. If the exemption is negated, the amount
of lead and any other toxic chemical in these non-article batteries would be
applied toward the processing threshold to determine if the facility must
report.
59. Does the article exemption apply to flat rolled sheet metals, if they
are used in operations which typically produce scrap but no release?
Assuming the scrap metal pieces are recognizable as the original piece, the
article exemption does apply to these metals if the forming process caused
0.5 pounds or less of releases of a listed toxic chemical from all like items or
the items retain the thickness of sheet metal in whole or in part. Once an
operation is performed on a metal that causes a release which is not recycled
and which exceeds 0.5 pounds for the reporting year (for example, from
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EPCRA Section 313 Questions and Answers Addendum
operations such as heating, grinding, or welding), the article exemption no
longer applies and releases must be reported when listed chemicals in a sheet
metal are processed in quantities greater than the processing threshold.
Article
Exemption,
End Use
Function
Article
Exemption,
Recognizable
as an Article,
Disposal,
Process, Lead
Article
Exemption,
PCB
Transformers,
Ancillary Use
60. A. facility manufactures lead came (i.e., slender, grooved, lead rods).
A lead billet is placed into a press and pushed through a die to produce a
unique form. The facility processes 100,000 pounds of lead came. Is this
process exempt from reporting under the article exemption?
The article exemption does not apply. The lead billet does not qualify as an
article because it does not have an end use function other than to be of a size
and shape convenient to further processing, and the end product is
significantly different in shape and dimension from the starting material.
Since the facility processes more than 100 pounds of lead, the facility must
report for this toxic chemical.
61. A covered manufacturing/aci'/iYy produces neon signs by bending
leaded glass tubing. The facility uses enough tubing annually to process
in excess of 100 pounds of lead, an EPCRA Section 313 toxic chemical.
When signs are formed from glass tubing, the diameter of the tubes
remains unchanged and lead is not released during the heating or
bending process, qualifying the tubes for the article exemption. If a
discrete number of glass tubes are broken and discarded during the year,
under what circumstances would disposal of the broken tubes constitute
a release that negates the article exemption, and how would the facility
calculate the amount of lead used in their operation?
Disposal of the glass does not necessarily constitute a release which
automatically negates the article exemption. For the tubing to meet the
definition of an article when discarded, the diameter of the tubing must
remain intact and unchanged. As a result, shards of glass no longer qualify as
articles. If more than 0.5 pounds of lead is released and not recycled, then
the article exemption would not apply to this glass tubing.
62. A covered facility has a PCB transformer on-site which it uses for
energy. The PCBs were removed from the transformer and disposed. Is
the amount of PCB removed for disposal counted towards the otherwise
use threshold? How is this activity covered under EPCRA Section 313?
If the facility removes the entire transformer including the PCB-laced oil as
an article, the amount of PCB in the article would not be included in Section
313 threshold determinations and release and other waste management
calculations. If a toxic chemical is present in an article at a covered facility,
the owner/operator is not required to consider the quantity of the toxic
chemical present in such article when determining whether an applicable
threshold has been met or when determining the amount to be reported as a
release or other waste management.
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EPCRA Section 313 Questions and Answers Addendum
Coincidental
Manufacture,
Combustion
Byproducts,
Hydrochloric
Acid, Metal
Compounds
Compounds,
Metal
Compounds,
Release
Reporting,
Lead
Compounds,
Lead
If the facility removes the PCB-laced oil from the article, this removal would
negate the article exemption. To determine if the facility exceeds a
threshold, the operator of the facility must count the amount of the chemical
added to the recycle/reuse operation during the reporting year (40 CFR
Section 372.25(e)).
If a facility has a transformer that leaks PCB-laced oil, this leaking would
also negate the article exemption. To determine if the facility exceeds a
threshold, again, the owner/operator of the facility must count the amount of
the chemical added to the recycle/reuse operation during the reporting year.
The facility would be otherwise using the PCB added to the transformer
(ancillary use). Only the amount of PCB added to the transformer needs to
be aggregated for threshold determination, and the facility will most likely
not be adding PCB-laced oil to the transformer. Therefore, it is unlikely that
the facility will exceed the otherwise use threshold. Thefacility, therefore,
would not be required to report releases and other waste management of the
PCBs for Section 313.
If, however, the facility exceeds the 10 pound threshold and needs to report
PCBs, the PCBs removed from the transformer and sent off-site for final
disposal would be a reportable release.
63. A covered facility has a coal-fired boiler. The combustion of the coal
generates aerosol forms of hydrochloric acid as a byproduct. Should the
aerosol forms of the HC1 emissions be reported under EPCRA Section
313?
Yes. In the combustion of coal, the facility will be coincidentally
manufacturing aerosol forms of hydrochloric acid, as well as hydrofluoric
acid and sulfuric acid. The combustion of coal will also result in the
coincidental manufacture of new metal compounds. Thefacility must submit
a Form R if it manufactures more than a threshold amount of any of these
listed toxic chemicals.
64. A covered facility processes both elemental lead and lead compounds.
The facility exceeds the 100 pounds per year processing threshold for
lead compounds, but not for elemental lead, and must submit a report
for lead compounds only. When calculating releases and other waste
management activities from the lead compounds, the owner/operator is
only required to account for the weight of the parent metal released (40
CFR Section 372.25(h)). Should the facility account for both releases of
lead from activities involving lead compounds and releases of lead from
activities involving elemental lead?
No. In the case when an activity threshold is exceeded only for lead
compounds, the report is only required to be based on the releases and other
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EPCRA Section 313 Questions and Answers Addendum
waste management estimates of lead, the parent metal, from lead compounds
only. Releases and other waste management estimates of lead resulting from
activities involving elemental lead need not be included in the release and
other waste management calculations. Conversely, if the facility were to
exceed an activity threshold for only elemental lead, the report would only
have to be based on releases and other waste management estimates from
activities involving elemental lead only.
Compounds,
Chemical
Qualifier,
Fume or Dust
65. There are two chemicals on the list with the qualifier "fume or dust"
(zinc and aluminum). What exactly is a "fume" or a "dust?"
EPA does not have a regulatory definition of a fume or a dust, but considers
dusts, for purposes of reporting, to consist of solid particles generated by any
mechanical processing of materials including crushing, grinding, rapid
impact, handling, detonation, and decrepitation of organic and inorganic
materials such as rock, ore, and metal. Dusts do not tend to flocculate except
under electrostatic forces. A fume is an airborne dispersion consisting of
small solid particles created by condensation from the gaseous state, in
distinction to a gas or vapor. Fumes arise from the heating of solids such as
lead. The condensation is often accompanied by a chemical reaction, such as
oxidation. Fumes flocculate and sometimes coalesce.
Compounds,
Coincidental
Manufacture,
Fume or Dust,
Processing
66. A covered facility processes aluminum and zinc. These two toxic
chemicals are listed under Section 313 with the qualifier "fume or dust."
Is this processing operation subject to reporting?
If the processing of these substances generates (i.e.. manufactures) any fume
or dust or if the two substances were processed or otherwise used, at any
time, as a fume or dust, the activities would be reportable under EPCRA
Section 313. The manufacturing, processing, or otherwise use of these
substances in fume or dust form would be subject to threshold
determinations.
Chemical
Category,
Threshold
Determination,
Release
Reporting,
Delimited
Category, PACs
67. The EPCRA Section 313 toxic chemical list contains three delimited
chemical categories. A delimited category includes a finite number of
chemicals specifically designated by EPA to be included as part of that
category. Are threshold determinations and release and other waste
management calculations for these three delimited chemical categories
different than threshold determinations and release and other waste
management calculations for other EPCRA Section 313 listed chemical
categories?
Threshold determinations are made in the same manner for both delimited
and nondelimited categories. If a covered facility manufactures, processes,
or otherwise uses more than one member of a listed chemical category, the
total volume of all the members of the category must be counted towards the
applicable activity threshold (40 CFR Section 372.27(d)). If an activity
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EPCRA Section 313 Questions and Answers Addendum
Mixture,
Threshold
Determination
threshold is exceeded, the owner or operator of the facility is required to
report under EPCRA Section 313. The report must cover all non-exempt
activities at the facility involving members of the category.
The three delimited categories are diisocyanates, dioxin and dioxin-like
compounds, and polycyclic aromatic compounds (PACs). The diisocyanates
category consists of 20 specific members, the dioxin and dioxin-like
compounds category consists of 17 specific members, and the PACs category
consists of 21 specific members. For reporting on delimited categories, only
the members that are specifically listed as part of the category are subject to
EPCRA Section 313 reporting. When reporting other nondelimited chemical
categories, any unique chemical substance that contains the named category
compound as part of that chemical's structure, or any compound meeting the
specified molecular formula, is subject to threshold determinations.
In 1999, (64 FR 58666, October 29, 1999), EPA classified the PACs
category as a PBT chemical category and lowered the reporting threshold to
100 pounds. In addition, EPA added two members to this category:
benzo(j,k)fluorine (fluoranthene) and 3-methylcholanthrene. EPA has
developed guidance to facilitate accurate reporting for PACs entitled
Guidance for Reporting Toxic Chemicals: Polycyclic Aromatic Compounds
Category, accessible from the TRI web site (www.epa.gov/tri) under the
heading "Guidance Documents." The guidance contains a list of Chemical
Abstract Service (CAS) numbers for the individual chemicals within the
PACs category and a CAS number list of some mixtures that might contain
chemicals within the PACs category. The dioxin and dioxin-like compounds
category was also classified as a PBT chemical category and a reporting
threshold of 0.1 gram was established. EPA has also developed guidance to
facilitate accurate reporting for dioxin and dioxin-like compounds; Guidance
for Reporting Toxic Chemicals with the Dioxin and Dioxin-like Compounds
Category is available from the TRI website (www.epa.gov/tri) under
"Guidance Documents."
68. A covered facility brings in natural and synthetic rubber in slab
form. It then adds chemicals to the rubber to change it to what they are
making (i.e., tennis balls). Does the facility need to consider the toxic
chemicals in the rubber it receives?
Yes. Rubber is a mixture for reporting purposes. Further, note that the
weights of the non-PBT chemicals must be added to the threshold
determination if their concentrations are above the de minimis concentration
limit (1 percent, or 0.1 percent for OSHA carcinogens) while the weight of
any PBT chemical must be added irrespective of concentration. The weight
added would be the weight percent of the toxic chemical multiplied by the
weight of the rubber slab.
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EPCRA Section 313 Questions and Answers Addendum
Releases,
Release
Reporting,
Acid
Neutraliza-
tion, pH
Releases,
Release
Reporting,
Stockpiles,
Storage
Releases,
Release
Reporting,
RCRA-empty,
Off-site
Transfer
69. How would a facility report under Section 313 on a wastestream
which is neutralized to a pH above 6 before discharged to a POTW?
Covered facilities that use Section 313 chemicals for pH adjustments and
neutralization must report if they meet the otherwise use threshold, even if
these chemicals are consumed and no releases result. The listed toxic
chemical is reported as zero pounds discharged to the POTW in Section 6.1
(Discharges to Publicly Owned Treatment Works) and the entire amount
neutralized is reported in Section 8.6 (Treated On-Site). The neutralization
process is reported under Section 7A of the Form R (On-Site Waste
Treatment Methods and Efficiency).
70. A manufacturing/aci/iYy that produces electricity by burning coal
stores the coal in an on-site stockpile that is exposed to the outside
atmosphere. The facility meets the threshold criteria (40 CFR Section
372.22) for filing a Form R for the toxic chemical benzene. Since the
stockpiled coal contains benzene and is exposed to the outside
atmosphere, would all the benzene in the coal need to be reported on the
Form R as a release to land on-site?
No. A facility does not have to report toxic chemicals contained in an on-site
stockpile of material that is intended for otherwise use on-site as a release to
land on-site. However, any toxic chemical that escaped to air or remains in
the soil from the stockpile material (e.g.. evaporative losses to air, material
leached to the ground, etc.) must be reported as released to the environment
on-site. Once a covered facility meets the criteria for filing a Form R under
EPCRA Section 313 for a toxic chemical (such as benzene), all releases of
that chemical at the facility are to be reported. Releases of non-PBT
chemicals from the stock pile will be eligible for the de minimis exemption.
71. A covered facility sends a 55-gallon drum containing less than one
inch of a listed toxic chemical off site for disposal. For purposes of the
RCRA hazardous waste regulations, the container is considered an
empty container as defined in 40 CFR Section 261.7 (i.e., RCRA-empty).
Must the facility report the listed toxic chemical contained in the RCRA-
empty container as an off-site transfer for purposes of disposal on
theForm R even though it is not considered to contain hazardous waste
under RCRA?
Yes. The definition of an empty container pursuant to 40 CFR Section 261.7
does not apply to EPCRA Section 313. Even though the residue remaining in
a container rendered RCRA-empty is no longer considered a hazardous waste
under federal RCRA regulations, it is still considered a toxic chemical under
EPCRA Section 313. The status of a listed toxic chemical as a nonhazardous
waste under RCRA has no impact on the applicability of EPCRA regulations
on that chemical.
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EPCRA Section 313 Questions and Answers Addendum
Waste
Management
Activities, NA
vs. 0, Part II
Section 8.8,
Catastrophic
One-Time
Event
Form A
Criteria
Under EPCRA Section 329, the term release is defined as "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 toxic chemical." In Part II, Section 8.1 of the Form R,
EPA requires facilities to report all releases of listed toxic chemicals, except
those quantities released to the environment as a result of remedial actions,
catastrophic events, or one-time events not associated with production
processes. Disposal of a RCRA-empty container which contains any amount
of a listed toxic chemical is generally reportable in Section 8.1 when
transferred from or disposed at an EPCRA Section 313 covered facility. If,
however, the facility has total reportable amounts of a non-PBT chemical not
exceeding 500 pounds, it may be eligible for the higher alternate reporting
threshold in 40 CFR Section 327.27.
72. On the Form R, a covered facility owner/operator must provide
information about routine and non-routine releases for each reported
toxic chemical. Specifically, in Part II, Section 8.8, an owner/operator
must report the quantity of any release of a toxic chemical into the
environment or transferred off-site as a result of a remedial action,
catastrophic event, or one-time event not associated with production
processes. If the facility did not experience any such release or transfer,
must the owner/operator report zero, or may the owner/operator report
"NA" in Section 8.8?
While either notation, NA or zero, may be entered in Part II, Section 8.8 of
the Form R, they are not synonymous. If a remedial action, catastrophic
event, or one-time event not associated with production processes results in a
release into the environment or an off-site transfer of the listed non-PBT
chemical and the annual aggregate release was less than 0.5 pound, then a
facility owner/operator should enter zero in Section 8.8. For PBT chemicals,
facilities should report releases and other waste management amounts greater
than 0.1 pound (and for dioxin and dioxin-like compounds 0.0001 gram), at a
level of precision supported by the accuracy of the underlying data and the
estimation techniques on which the estimate is based, (see (64 FR 58734,
October 29, 1999) and Guidance for Reporting Toxic Chemicals with the
Dioxin and Dioxin-like Compounds Category (EPA-745-B-00-021,
December 2000)). An owner/operator should only report NA for Section 8.8
on the Form R if no release or transfer occurred as a result of these activities.
73. EPA published a final rule in the Federal Register on November 30,
1994 (59 FR 61488), which created an alternate threshold of one million
pounds for certain facilities. How can a facility that exceeds one of the
original thresholds qualify for the alternate threshold?
Facilities which have a total annual reportable amount of no greater than
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EPCRA Section 313 Questions and Answers Addendum
Form A
Form A
Criteria
500 pounds for a listed non-PBT chemical may qualify for the 1 million
pound alternate threshold for that chemical, beginning with the 1995
reporting year. For purposes of the alternate threshold, the total annual
reportable amount includes non-PBT chemicals listed at 40 CFR Section
372.65 which are released (including disposed)., treated, recycled, and
burned for energy recovery at the facility and amounts transferred from the
facility to off-site locations for the purposes of recycling, energy recovery,
treatment, and/or disposal. These amounts correspond to column B, Sections
8.1 through 8.7 of the reporting Form R. If a facility's combined total
annual reportable amount does not exceed 500 pounds for a specific non-
PBT chemical, the facility can qualify for reduced reporting requirements
unless the amount of that non-PBT chemical manufactured, processed, or
otherwise used within the reporting year exceeds one million pounds.
Covered facilities that qualify for the alternate threshold are not exempt from
reporting, but must fulfill certain requirements. In lieu of submitting a
Form R, the owner/operator of a facility must submit an annual certification
statement (Form A) indicating that the facility met the requirements for use
of the alternate threshold for a specific chemical. The facility must also
maintain, and make available upon request, records substantiating the claim.
The Form A includes basic information regarding the facility's identification,
the chemical in question, and a statement of accuracy to be signed by a
senior management official of the facility.
74. What is the Form A and who may submit this form?
The Form A provides certain covered facilities the option of submitting a
substantially shorter form with a reduced reporting burden. Facilities which
meet the SIC code, employee, and chemical activity thresholds but who do
not exceed one million pounds manufactured, processed, or otherwise used
and the facility's total annual reportable amount does not exceed 500 pounds
for the non-PBT chemical, may submit an annual certification statement
(Form A) instead of a Form R for the toxic chemical.
75. If I meet the criteria for filing a Form A for one non-PBT chemical,
may I use it for all of the non-PBT chemicals covered at my facility!
No. Eligibility for use of Form A is toxic chemical specific. However, more
than one toxic chemical can be reported on a single Form A. To be eligible
for reporting a toxic chemical using Form A, a facility must not manufacture,
process, or otherwise use more than one million pounds of the specific non-
PBT chemical and the total annual reportable amount for the non-PBT
chemical must be less than 500 pounds. In some instances, & facility may
submit the Form A for some chemicals and the Form R for other chemicals.
Although all non-PBT toxic chemicals that meet the eligibility criteria for use
of Form A may now be reported together on a single Form A, each eligible
toxic chemical must be individually listed on the Form.
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EPCRA Section 313 Questions and Answers Addendum
Form R,
Maximum
Amount
On-site, Fume
or Dust, Part II
Section 4,
Threshold
Determination
Form R,
Significant
Figures
Form R,
Release
Estimate,
Significant
Figures
76. The list of toxic chemicals under EPCRA Section 313 contains two
substances with a "fume or dust" qualifier (aluminum and zinc). For
purposes of reporting the maximum amount on-site (Part II, Section 4 of
the Form R), should covered facilities only report the maximum amount
of fume or dust on-site or the maximum amount of all forms of the
chemical on-site at any one time?
When determining the maximum amount on-site for Part II, Section 4 of the
Form R, only the reportable form of a chemical (e.g.. fume or dust) is to be
considered.
77. Please explain the "two significant figures" reporting guideline.
For non-PBT chemicals, estimates are not required to be reported to a greater
accuracy than two significant figures (e.g., 4224 may be entered as 4200).
The number of significant figures is the number of non-zero digits. One
significant digit may be reported if the estimation techniques used do not
support two digit accuracy. For PBT chemicals, if & facility's release or
other management calculations support reporting an amount that is more
precise than two significant digits, then the facility should report that more
precise amount. (64 FR 58734, October 29, 1999)
78. When reporting release estimates for non-PBT chemicals on the
Form R, EPA recommends release estimates be rounded to no more than
two significant figures. Should release estimates always be reported in
whole numbers, or should decimal places be reported in certain
instances?
When reporting release and other waste management estimates on the
Form R for non-PBT chemicals, always report using whole numbers (i.e..
round to the nearest pound). For PBT chemical ^facilities should report
releases and other waste management amounts greater than 0.1 pound (and
for dioxin and dioxin-like compounds 0.0001 gram), at a level of precision
supported by the accuracy of the underlying data and the estimation
techniques on which the estimate is based, (see (64 FR 58734, October 29,
1999) and Guidance for Reporting Toxic Chemicals with the Dioxin and
Dioxin-like Compounds Category (EPA-745-B-00-021, December 2000)).
30
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DIRECTIVE #2 - DE MINIMIS EXEMPTION
The de minimi s exemption allows covered facilities to disregard certain
minimal concentrations of non-PBT chemicals in mixtures or trade name
products. The de minimi s exemption does not apply to the manufacture of a
non-PBT chemical except if that toxic chemical is manufactured as an
impurity and remains in the product distributed in commerce, or if the toxic
chemical is imported below the appropriate de minimi s level. The
de minimi s exemption does not apply to a byproduct manufactured
coincidentally as a result of manufacturing, processing, otherwise use, or any
waste management activities.
When determining whether the de minimi s exemption applies to a listed non-
PBT chemical, the owner/operator should consider only the concentration of
the non-PBT chemical in mixtures and trade name products. If the non-PBT
chemical is manufactured as an impurity, imported, processed, or otherwise
used and is below the appropriate de minimi s concentration level, then the
quantity of the toxic chemical does not have to be applied to threshold
determinations nor included in release or other waste management
calculations. If a non-PBT chemical in a mixture or trade name product is
below the appropriate de minimi s level, all releases and other waste
management activities associated with the toxic chemical in the mixture or
trade name product are exempt from EPCRA Section 313 reporting. It is
possible to meet an activity (e.g.. processing) threshold for a toxic chemical
on afacility-wide basis, but not be required to calculate releases or other
waste management quantities associated with a particular process because
that process involves only mixtures or trade name products containing the
toxic chemical below the de minimi s level.
Once a non-PBT chemical concentration is above the appropriate de minimi s
level in the mixture or trade name product, threshold determinations and
release and other waste management calculations must be made, even if the
chemical later falls below the de minimis level in the same mixture or trade
name product. Thus, all releases and other quantities managed as waste that
occur after the de minimis level has been exceeded are subject to reporting.
If a non-PBT chemical in a mixture or trade name product above de minimis
is brought on-site, the de minimis exemption never applies.
The 0.1 percent de minimis levels are dictated by determinations made by the
National Toxicology Program (NTP), Annual Report on Carcinogens, the
International Agency for Research and Cancer (IARC)
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EPCRA Section 313 Questions and Answers Addendum
Monographs, or 29 CFR part 1910, subpart Z. Therefore, once a chemical's
status under NTP, IARC, or 29 CFR part 1910, subpart Z indicates that the
chemical is a carcinogen or potential carcinogen, the reporting facility may
disregard levels of the chemical below the 0.1 percent de minimi s
concentration provided that the other criteria for the de minimis exemption
is met. De minimis levels for chemical categories apply to the total
concentration of all chemicals in the category within a mixture, not the
concentration of each individual category member within the mixture. All
other listed toxic chemicals have a one percent (1.0 percent) de minimis level.
1. De Minimis Application to the Processing or Otherwise Use of a Mixture
The de minimis exemption applies to the processing or otherwise using., of a
listed non-PBT chemical in a mixture. Threshold determinations and release
and other waste management calculations begin at the point where the
chemical exceeds de minimis. If a listed non-PBT chemical is present in a
mixture at a concentration below the de minimis level, this quantity of the
substance does not have to be included for threshold determination, release
and other waste management reporting. The exemption will apply as long as
the mixture containing de minimis amounts of a non-PBT chemical never
goes above the de minimis limit. Also, see the two examples below in which
a manufacturing activity would qualify for the de minimis exemption.
Examples of Process and Otherwise Use Scenarios
There are many cases in which the de minimis limit is crossed or recrossed
within & process or otherwise use scenario. The following examples are
meant to illuminate these complex reporting scenarios. These applications
are further described in the general section of the Toxic Chemical Release
Inventory Reporting Forms and Instructions.
A. Example of Increasing Process Concentration to Above De Minimis
Levels
A manufacturing facility receives toluene which contains less than the
de minimis concentration of chlorobenzene. Through distillation, the
chlorobenzene content in process streams is increased over the de minimis
concentration of 1 percent. From the point at which the chlorobenzene
concentration exceeds 1 percent in process streams, the amount present must
be factored into threshold determinations and release and other waste
management calculations. The facility does not need to consider the amount
of chlorobenzene in the raw material, i.e., when below de minimis levels,
when making threshold determinations. The facility does not have to report
emissions of chlorobenzene from storage tanks or any other equipment where
the chlorobenzene content is less than 1 percent.
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B. Example of Fluctuating Process Concentration
A manufacturer produces an ink product which contains toluene, a listed
toxic chemical below the de minimis level. The process used causes the
percentage of toluene in the mixture to fluctuate: it rises above the
de minimi s level for a time but drops below the level as the process winds
down. The facility must consider the chemical toward threshold
determinations from the point at which it first exceeds the de minimi s limit.
Once the de minimi s limit has been crossed the exemption cannot be taken.
C. Example of Concentration Levels that Straddle the De minimis Level
P± facility processes 9,500,000 Ibs. of mixtures containing 0.25-1.25 percent
manganese. Manganese is subject to 1 percent de minimis concentration
exemption. The amount of mixture subject to reporting is:
9,500,000 x (1.2 - 0.99)7(1.2 - 0.25) = 2,000,000 Ibs. non-exempt mixture
The average concentration above de minimis is 1.1 percent.
2,900,000 x 0.011 manganese = 22,000 Ibs manganese (below threshold)
In this example, because the facility's information pertaining to the toxic
chemical is available to two digits past the decimal point, the facility used
0.99 to determine the amount of the toxic chemical below the de minimis
level. If the facility has information pertaining to the chemical that is
available only to one digit past the decimal point, the facility should use 0.9.
2. De Minimis Application in the Manufacture of the Listed Chemical in a
Mixture
The de minimis exemption generally does not apply to the manufacture of a
non-PBT chemical. The de minimis exemption may apply to mixtures and
trade name products containing non-PBT chemicals that are imported into
the United States. Another exception applies to non-PBT chemicals that are
coincidentally manufactured as impurities that remain in the product
distributed in commerce at below the de minimis levels. In that case, the
amount remaining in the product is exempt from threshold determinations. If
the non-PBT chemical is separated from the final product, thereby classifying
the chemical as a byproduct, it cannot qualify for the exemption. Any
amount that is separated, or is separate from the product, is considered a
byproduct and is subject to threshold determinations and release and other
waste management calculations. Any amount of a toxic chemical that is
manufactured in a wastestream must be accounted for on the Form R.
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EPCRA Section 313 Questions and Answers Addendum
A. Example of Coincidental Manufacture as a Product Impurity
Toluene 2,4-diisocyanate reacts with water to form trace quantities of
2,4-diaminotoluene. The resulting product contains 99 percent toluene
2,4-diisocyanate and 0.05 percent 2,4-diaminotoluene. The
2,4-diaminotoluene would not be subject to Section 313 reporting nor would
supplier notification be required because the concentration of
2,4-diaminotoluene is below its de minimis concentration of 0.1 percent in
the product. Coincidental manufacture/production refers only to production
of a chemical via a chemical reaction. It would not include separation of a
byproduct from a purchased mixture during a processing operation.
B. Example of Coincidental Manufacture as a Commercial Byproduct and
Impurity
Chloroform is a reaction byproduct in the production of carbon tetrachloride.
It is removed by distillation to a concentration of less than 150 ppm (0.0150
percent) remaining in the carbon tetrachloride. The separated chloroform at
90 percent concentration is sold as a byproduct. Chloroform is subject to a
0.1 percent (1,000 ppm) de minimis level. Any amount of chloroform
manufactured and separated as byproduct must be included in threshold
determinations because the de minimis exemption does not apply to
manufacture of a chemical byproduct. Releases of chloroform prior to and
during purification of the carbon tetrachloride should be reported. The
de minimis level can, however, be applied to the chloroform remaining in the
carbon tetrachloride as an impurity. Because the concentration of chloroform
remaining in the carbon tetrachloride is below the de minimis level, this
quantity of chloroform is exempt from threshold determinations, release and
other waste management reporting, and supplier notification.
C. Example of Coincidental Manufacture as a Waste Byproduct
A small amount of formaldehyde is manufactured as a reaction byproduct
during the production of phthalic anhydride. The formaldehyde is separated
from the phthalic anhydride as a waste gas and burned, leaving no
formaldehyde in the phthalic anhydride. The amount of formaldehyde
produced and removed as waste must be included in threshold determinations
and release and other waste management calculations even if the
formaldehyde is present below the de minimis level in the process stream
where it was manufactured or in the wastestream which it was separated.
The de minimis exemption also does not apply to situations where the
manufactured chemical is released or transferred to wastestreams and thereby
diluted to below the de minimis level.
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3. De Minimis Levels Impact Supplier Notification Requirements
If the toxic chemical in a mixture or trade name product is present below the
de minimis level for that toxic chemical, supplier notification is not required
for that chemical regardless of whether or not it is a PBT chemical.
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EPCRA Section 313 Questions and Answers Addendum
DIRECTIVE #4 - COMPOUNDS AND MIXTURES
1. Definition of Compounds
A "compound" is a distinct chemical that results from the reaction of two or
more other chemicals. In the formation of a compound, the reactant
chemicals lose their individual chemical identities. Polymers formed as
nonreversible reaction products are an example of compounds.
2. Definition of Mixtures
A mixture is any combination of two or more distinct chemicals if the
combination is not the result of a chemical reaction. In a mixture, the
individual components retain their identities. Mixtures include any
combination of a chemical and associated impurities. Alloys are mixtures
because the individual metals in the alloy retain their chemical identities.
Wastes are not mixtures.
3. Mixtures Must be Considered for Section 313 Reporting
Threshold determinations and release and other waste management
calculations for Section 313 reporting must include the amount of the listed
non-PBT chemical present above the de minimis level in all mixtures. If a
listed non-PBT chemical is present in a mixture at or above the de minimis
level, or a PBT chemical is present at any concentration, only the amount of
the toxic chemical., and not the mixture itself, is used for threshold
determinations and release and other waste management calculations.
4. Supplier Notification and Concentration Ranges Provide Information for
Reporting
The supplier notification requirements under 40 CFR Section 372.45 are
designed to provide chemical users with information on the identity and
concentrations of listed toxic chemicals present in the mixtures that they use.
There can still be situations, however, when & facility may not have this
information for a mixture. If the facility knows that a mixture contains a toxic
chemical but no concentration information is provided by the supplier, then
the facility does not have to consider the amount of the toxic chemical present
in that mixture for purposes of threshold determinations and release and other
waste management calculations. If only a range of concentrations is
available for a toxic chemical present in a mixture., the owner/operator should
use the midpoint of the "minimum" and "maximum" percentages in order to
determine the amount to apply toward thresholds. If & facility owner/operator
only knows the lower bound concentration of a toxic chemical present in a
mixture, the owner/operator should assume the upper bound concentration is
100 percent, and compute an average based on these lower and upper bound
concentration estimates to determine whether thresholds have been exceeded.
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If there are other known components present in the mixture, the facility
owner/operator should subtract out the percentage of these components to
determine what a reasonable "maximum" percentage of the toxic chemical
could be.
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EPCRA Section 313 Questions and Answers Addendum
DIRECTIVE #5 - TOXIC CHEMICAL CATEGORIES
1. All Compounds in a Listed Chemical Category are Aggregated for
Threshold Determinations
Toxic chemical categories listed under EPCRA Section 313 require a
different approach when making threshold determinations and release and
other waste management calculations. For a chemical that is included in a
listed metal compound category, the total weight of that chemical compound,
not just the parent metal, is used in making threshold determinations. A
facility will need to calculate the total weight of all compounds that are in the
category, sum the amounts involved throughout the facility in each threshold
activity, and compare the totals to the applicable thresholds. A non-PBT
compound in a listed chemical category that is present in a mixture below the
de minimis concentration, based on the total weight of the compound, is
exempt from threshold calculations under Section 1. Again, all individual
members of a compound category must be totaled to determine if that
compound category has exceeded the de minimi s concentration in a mixture.
2. Make Threshold Determinations for Listed Toxic Chemicals Separately
from the Listed Chemical Category
The Section 313 list contains some listed substances that are also members of
a listed chemical category. Threshold determinations for a specifically listed
toxic chemical are calculated separately from the threshold determinations for
the chemical category. For example, 2-Methoxyethanol, which is specifically
listed on the Section 313 list, is also a glycol ether compound but is not
included in the glycol ether compound category for purposes of section 313
reporting. Because the chemical is specifically listed, & facility must make a
threshold determination for 2-Methoxyethanol and a separate threshold
determination for all other glycol ethers meeting the criteria for that chemical
category that are not specifically listed under Section 313.
3. Calculate Releases and Other Waste Management Based on Parent Metal
for Metal Compound Categories
Once a reporting threshold is met for a metal compound, releases and other
waste management of compounds are calculated based on the pounds of the
parent metal released or otherwise managed as waste rather than the total
weight of the compound. EPA adopted this approach because of the
difficulty in calculating releases of potentially numerous compounds within a
metal compound category, recognizing that methods and data for monitoring
the parent metal often exist while those for the compound(s) rarely will.
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4. Optional Form R Submission for Parent Metal and Associated Metal
Compound Category
If both the parent metal and associated metal compound category exceed their
respective thresholds, one Form R, covering all releases and other waste
management of the parent metal from activities involving both the chemical
and the chemical category, may be filed. For example, if a facility processes
30,000 pounds of lead and otherwise uses 13,000 pounds of lead oxide, the
facility could submit one Form R for lead and lead compounds. On this
Form R, the facility would report all activities involving lead and lead
compounds and all releases and other waste management of the parent metal
lead. This option, preferred by EPA, is available to facilities, although
separate reports may be filed if desired.
5. Calculate Releases and Other Waste Management Based on Nitrate Ion
for Nitrate Compounds
Once a reporting threshold is met for the water dissociable nitrate compound
category, releases and other waste management estimates are calculated
based on the pounds of the nitrate ion in aqueous solution rather than the total
weight of the compound. EPA adopted this approach because most
monitoring data available only measure the dissociated nitrate ion released
and not the amount of the total nitrate compounds from which the nitrate ion
dissociated. Reporting the amount of total water dissociable nitrate
compound in wastes would be complicated when more than one substance
contributes to the nitrate ion content of the waste and when the nitrate
compound is converted to a different substance due to waste treatment or
other processes.
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EPCRA Section 313 Questions and Answers Addendum
DIRECTIVE #6 - PCBs THRESHOLD DETERMINATION AND
RELEASE AND OTHER WASTE MANAGEMENT REPORTING
Polychlorinated biphenyls (PCBs) are a listed chemical under Section 313.
1. PCBs in Articles are Exempt
EPA has stated that transformers are articles (and thus exempt from threshold
determinations), but that the release or removal of fluid from the transformer
negates the article status. The article status of only those transformers that
have fluids removed (e.g.. servicing or retrofilling), or have fluids escape are
affected. However, the PCBs are still not considered if no new PCB-
containing fluid is added, since the threshold determination is based on fluid
added, not lost.
EPA has stated that disposal or removal of articles does not constitute a
release. Therefore, disposal on-site, or off-site transfer of the whole
transformer with fluid content undisturbed, does not negate the article status.
The transformer is not included in threshold determinations and does not
have to be reported as a release or an off-site transfer of PCBs for purposes
of Section 313 reporting.
When calculating the threshold for otherwise use, & facility must consider
only the amount of PCBs added to transformers during the reporting year
(e.g., "topping off a transformer), not the amount of working fluid contained
in the transformer.
2. Coincidental Manufacture of PCBs is Subject to EPCRA Section 313
Facilities involved in coincidental manufacture of PCBs and further
processing of mixtures containing PCBs must count the amount
manufactured or processed toward these thresholds.
3. Treatment or Disposal of PCBs May Require EPCRA Section 313
Reporting
Facilities in the SIC codes 20 through 39, as well as the newly covered SIC
codes, may be subject to Section 313 reporting if they treat or dispose of
PCBs. Effective January 1, 1998, the interpretation of activities considered
otherwise used includes treatment for destruction, disposal, and waste
stabilization when the covered facility engaged in these activities receives
materials containing any chemical (not limited to EPCRA Section 313 listed
toxic chemicals) from off-site (regardless of whether the generating and
receiving facilities have common ownership) for purposes of further waste
management.
Processing represents a potentially covered activity. However, facilities are
not likely to be incorporating PCBs into items distributed in commerce or to
be using PCBs as starting or intermediate material for the production of other
chemical substances that are distributed in commerce, or used on site.
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DIRECTIVE #7 - DEFINITION OF OTHERWISE USE (Effective
Reporting Year 1998)
On May 1, 1997, EPA published a final rule to expand the universe of
industry groups subject to EPCRA Section 313 and PPA Section 6607 (62 FR
23834; May 1, 1997). In this rule, which became effective January 1, 1998
(for the 1998 reporting year, Form R reports due by July 1, 1999), EPA
finalized a revised interpretation of the term otherwise use.
1. Current Interpretation of Otherwise Use
Until January 1, 1998, the definition of otherwise use means "any use of a
toxic chemical that is not covered by the terms manufacture or process and
includes use of a toxic chemical contained in a mixture or trade name
product. Relabeling or redistributing a container of a toxic chemical where
no repackaging occurs does not constitute otherwise use or processing of the
toxic chemical." EPA has generally interpreted this term to include toxic
chemicals that are not intentionally incorporated into a product distributed in
commerce. This would include any activity involving a listed toxic chemical
at & facility that does not fall under the definitions of manufacture or process.
Some examples of toxic chemicals otherwise used include solvents, catalysts,
coolants, lubricants and fuels. Historically, EPA has instructed facilities
that the disposal of a toxic chemical, in and of itself, does not constitute
manufacture, process, or otherwise use.
2. Revised Interpretation of Otherwise Use
In the May 1, 1997 final rule, EPA modified its definition of activities
considered otherwise used as it applies to EPCRA Section 313 activity
thresholds to include on-site treatment for destruction., disposal., and
stabilization when the covered facility engaged in these activities receives
materials containing any chemical (not limited to EPCRA Section 313 listed
toxic chemicals) from off-site (regardless of whether the generating and
receiving facilities have common ownership) for the purposes of further
waste management activities. Specifically, EPA has defined the term
otherwise use to include "any use of a toxic chemical" contained in a mixture
or other trade name product or waste, that is not covered by the terms
manufacture or process. Otherwise use of a toxic chemical does not include
disposal, stabilization (without subsequent distribution in commerce), or
treatment for destruction, unless:
(1) The toxic chemical that was disposed, stabilized, or treated for
destruction was received from off-site for the purposes of further waste
management; or
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EPCRA Section 313 Questions and Answers Addendum
(2) The toxic chemical that was disposed, stabilized, or treated for
destruction was manufactured as a result of waste management activities
on materials received from off-site for the purposes of further waste
management activities. Relabeling or redistributing of the toxic chemical
where no repackaging occurs does not constitute otherwise use or
processing of the toxic chemical.
3. Examples of the Revised Interpretation of Otherwise Use
The following are examples of the revised interpretation of otherwise use as
finalized in the May 1, 1997, final rule. These examples assume that the
facility meets the EPCRA Section 313 employee and SIC code criteria.
Example 1: A facility receives a material containing 22,000 pounds of
chemical A. Chemical A is an EPCRA Section 313 listed non-PBT chemical.
The facility treats chemical A for destruction. Included among the various
activities covered by EPA's revised interpretation of otherwise use is the
treatment for destruction of a toxic chemical received by the facility from
off-site. Because the facility received and treated chemical A for destruction,
the treated amount of chemical A would be included in the calculation of the
amount of chemical A otherwise used at the facility. In this case, 22,000
pounds of chemical A would be considered otherwise used. Thus, because
the facility otherwise used chemical A above the 10,000 pound statutory
threshold for otherwise use, the facility would be required to report all
releases and other waste management activities involving chemical A.
Example 1 A: A facility receives a material containing 22,000 pounds of
chemical A, and chemical A is an EPCRA Section 313 listed non-PBT
chemical. The facility stabilizes chemical A. Stabilization is included among
the various activities covered by EPA's revised interpretation of otherwise
use of a toxic chemical received by the facility from off-site. Because the
facility received and stabilized chemical A, the amount of stabilized chemical
A would be included in the calculation of the amount of chemical otherwise
used at the facility. In this case, 22,000 pounds of chemical A would be
considered otherwise used. Thus, because the facility otherwise used
chemical A above the 10,000 pound statutory threshold for otherwise use, the
facility would be required to report all releases and other waste management
activities involving chemical A.
Example IB: A facility receives a material containing 18,000 pounds of
chemical A, and chemical A is an EPCRA Section 313 listed non-PBT
chemical. The facility stabilizes 9,000 pounds of chemical A and disposes of
the other 9,000 pounds of chemical A. Included among the various activities
covered by EPA's revised interpretation of otherwise use are stabilization and
disposal of a toxic chemical received by a facility from off-site. Because the
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facility received the 18,000 pounds of chemical A from off-site, the amount
of chemical A that is subsequently stabilized or disposed \$ considered
otherwise used, and would be included in the calculation of the amount of
chemical A otherwise used at the facility for the purpose of threshold
determination. The facility would need to add the amount of chemical A that
is involved in all otherwise use activities to determine whether the otherwise
use threshold of 10,000 has been exceeded. In this case, 18,000 pounds of
chemical A would be considered otherwise used. Thus, because the facility
otherwise used chemical A above the 10,000 pound statutory threshold for
otherwise use, the facility would be required to report all releases and other
waste management activities involving chemical A.
Example 2: Assume now that the samefacility, in treating chemical A for
destruction, manufactures 11,000 pounds of chemical B. Chemical B is also
an EPCRA Section 313 listed non-PBT chemical. This manufacture of
chemical B is below the manufacture reporting threshold. However, the
facility disposes of chemical B on-site. Included among the various activities
covered by EPA's revised interpretation of otherwise use is the disposal of a
toxic chemical that is produced from the management of a waste that is
received by the facility from off-site. In this example, because the facility
received an off-site material containing a chemical that is treated for
destruction (i.e.. chemical A), and during that treatment produced and
subsequently disposed of chemical B, the disposal of chemical B under
EPA's revised interpretation would be considered otherwise used. Because
the facility disposed of, or otherwise used, 11,000 pounds of chemical B, the
10,000 pound statutory threshold for otherwise use is met. Thus, the facility
would need to report all releases and other waste management activities
involving chemical B.
Example 2A: Now assume that the situation in Example 2 is the same (and
the facility is still below the manufacturing threshold for chemical B,) except
the facility does not dispose of chemical B on-site, but incorporates the entire
11,000 pounds of chemical B into a product that is sold to another facility.
The facility neither treats for destruction, stabilizes, nor disposes of chemical
B and, therefore, does not otherwise use chemical B. However, in this
example, chemical B is also considered processed. Therefore, the 11,000
pounds of chemical B are counted towards the 25,000 pound process
threshold for that chemical at the facility.
Example 2B: As in the above two examples, 11,000 pounds of chemical B
are manufactured from the treatment of chemical A (and chemical A was
received from an off-site facility). The facility is still below the
manufacturing threshold for chemical B. However, the facility disposes of
6,000 pounds of chemical B and uses 5,000 pounds of chemical B in a
nonincorporative manufacturing activity at the facility. Both of these
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EPCRA Section 313 Questions and Answers Addendum
activities are considered to be otherwise use activities. The disposal of
chemical B is included among the various activities covered by EPA's
revised interpretation of otherwise use described in the proposal to expand
the types of facilities covered under EPCRA Section 313. Any
non-incorporative use of a toxic chemical at a covered facility that is not
otherwise exempt is an otherwise use activity under the current interpretation.
The facility would add the amounts of chemical B involved in both otherwise
use activities at the facility to determine whether it exceeds the 10,000
otherwise use threshold. Since the total amount of chemical B that is
otherwise used is 11,000 pounds, the facility would need to report all releases
and waste management activity involving chemical B.
Example 3: A facility produces on-site a material containing 22,000 pounds
of chemical C. Chemical C is not an EPCRA Section 313 listed chemical.
Also, chemical C was not manufactured as a result of managing a waste
received from off-site. The facility treats chemical C for destruction and
during treatment, manufactures 11,000 pounds of chemical D. Chemical D is
an EPCRA Section 313 listed non-PBT chemical. The facility subsequently
disposes of chemical D. In this example, although the facility disposes of
chemical D, the 11,000 pounds of chemical D is not considered otherwise
used under EPA's revised definition because the material from which
chemical D was produced (i.e., the material containing the 22,000 pounds of
chemical C) was not received by the facility from off-site. Thus, in disposing
of chemical D, the facility does not exceed the 10,000 pound statutory
threshold for otherwise use. The facility, however, must count the amount of
chemical D manufactured toward the manufacturing threshold.
Example 3 A: Assume instead that chemical C (which is not an EPCRA
Section 313 listed toxic chemical) was received from off-site or was created
in waste management activities conducted on materials received from
off-site. In this situation, the disposal of chemical D would be considered an
otherwise use activity involving chemical D. Therefore, the disposal of the
11,000 pounds of chemical D would exceed the 10,000 pound statutory
threshold for otherwise use, and the facility would need to report all releases
and waste management activities involving chemical D.
Example 3B: Chemical D is an EPCRA Section 313 chemical that is
manufactured from chemical C during a waste management activity at the
facility. (Chemical C is produced on-site and is not an EPCRA Section 313
listed toxic chemical.) In this example, the facility uses the entire 11,000
pounds of chemical D to neutralize a wastestream at the facility. Under the
current definition of otherwise use, chemical D is considered otherwise used.
Therefore, the facility exceeds the otherwise use threshold and the facility
would report all releases and waste management activity involving chemical
D.
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Example 4: A facility receives 24,000 pounds of chemical E, which is not an
EPCRA Section 313 toxic chemical. Chemical E undergoes & processing
activity at the facility. This activity is not a waste management activity.
During the processing of chemical E, 11,000 pounds of chemical F is
manufactured as a byproduct. Chemical F is an EPCRA Section 313 listed
non-PBT chemical. The 11,000 pounds of chemical F is then disposed.
According to the current and the revised interpretation of the otherwise use
definition, the facility has not otherwise used chemical F. Since chemical E
was not received by the facility for the purpose of waste management, the
subsequent disposal of chemical F is not an otherwise use activity under the
revised interpretation of otherwise use. Under the current interpretation of
otherwise use, the activity of disposal under these circumstances does not
constitute a reportable activity for the purposes of threshold determinations.
The facility, however, would have to count the amount of chemical F
manufactured toward the manufacturing threshold.
Example 5: A facility processes 24,000 pounds of chemical E, an EPCRA
Section 313 non-PBT chemical. This activity is not a waste management
activity. During Reprocessing of chemical E, 11,000 pounds of chemical E
exits the process in the facility's waste. Because chemical E has a high
BTU/lb value, the facility combusts the wastestream containing chemical E in
an energy recovery unit on-site. Under EPA's current and revised guidance
on otherwise use, an EPCRA Section 313 toxic chemical that is a constituent
of waste-derived fuel combusted in an energy recovery device is otherwise
used by the facility, regardless of the origin of the waste-derived fuel.
Therefore, when combusted for energy recovery on-site, chemical E, a
constituent of the waste derived fuel, is considered otherwise used under the
current definition of otherwise use. Because the facility combusts 11,000
pounds of the toxic chemical, the facility has exceeded the otherwise use
activity threshold.
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United States
Environmental Protection Agency
(2844T)
Washington, DC 20460
Official Business
Penalty for Private Use
$300
EPA 260-B-04-002
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