What facilities are subject to EPCRA section 313 reporting?
A facility must report release and other waste management information pursuant to EPCRA section 313 if it: (1) has 10 or more full-time employees or the equivalent; (2) is in a covered NAICS code; and (3) exceeds any one threshold for manufacturing (including importing), processing, or otherwise using a toxic chemical listed in 40 CFR Section 372.65.
If a facility triggers TRI reporting thresholds for a listed toxic chemical (i.e., it meets the employee and toxic chemical activity thresholds and is in a covered NAICS code), is it 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 a TRI reporting form. If the facility meets the employee and chemical activity thresholds and is in a covered NAICS 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 (Alternate Threshold Certification Statement). If the facility exceeds either the 500- or one million-pound limits, it must report on the Form R (40 CFR Section 372.85 and 372.95).
Effective January 1, 1997, the Office of Management and Budget adopted the North American Industry Classification System (NAICS), a new economic classification system that replaces the 1987 Standard Industrial Classification (SIC) system (62 FR 17228; April 19, 1997). How will EPA update its EPCRA section 313 regulations to reflect this change?
EPA issued a final rule to amend 40 CFR Section 372 and require reporting facilities to include NAICS codes (71 FR 32464; June 6, 2006).
How do facilities determine their NAICS code?
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.Note that the North American Industry Classification System (NAICS) is the economic classification system that replaced the 1987 SIC code system. A Federal Register notice was published on June 6, 2006 (71 FR 32464) adopting NAICS codes for TRI reporting.
What is the definition of primary NAICS code? How can there be more than one NAICS code for a facility?
A primary NAICS 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 NAICS code because a facility may be made up of several establishments each of which may have a different primary NAICS code. Additional information on NAICS codes can be found on the NAICS TRI website.
Does EPA have the authority to require facilities that don’t meet all of the EPCRA section 313 thresholds to submit TRI reports?
Pursuant to EPCRA section 313(b)(2), EPA has the option to apply TRI reporting requirements to the owners and operators of facilities that manufacture, process, or otherwise use a toxic chemical listed in EPCRA section 313(c), yet do not meet the full criteria to trigger reporting. EPCRA section 313(b)(2) also provides an opportunity for governors of states to request that EPA apply TRI requirements to the owners and operators of such facilities. When determining whether to require facilities that do not meet the full criteria to report, EPA considers the toxicity of the chemical, the proximity to other facilities that release the toxic chemical or to population centers, the history of releases of such chemical at a facility, and other factors that EPA deems appropriate when determining whether such action is warranted.
If a covered facility changes its primary NAICS code during the reporting year, how should it determine applicability for EPCRA §313 TRI reporting?
A facility that changes its primary NAICS code during the reporting year must determine applicability based on the NAICS code that represented a majority of the facility’s activity value. The activity value is the sum of the value of services provided and the products shipped or produced by the facility. If the facility’s activity value while it was in a covered NAICS code is greater than 50 percent of the total value of all services or products provided for the entire year, then the facility would be covered under TRI with respect to the NAICS code applicability criterion. If the facility’s activity value for any one NAICS code used during the year does not exceed 50 percent of the total value of all services or products provided for the entire year, then the facility’s NAICS code with the highest activity value would be the primary NAICS code for the year. If the facility determines that its primary NAICS code was a covered NAICS code, and it met the other applicability requirements in §372.22, then the facility must comply with the TRI reporting requirements.
A coal mine, that is subject to EPCRA section 313, is owned and operated by company A and is adjacent to an electricity generating facility (EGF), which is also subject to EPCRA Section 313. The EGF is owned and operated by a joint venture which Company A owns 40 percent of and Company B owns 60%. Are the coal mine and the EGF considered one facility?
No. The parent company in a joint venture is the joint venture. The electricity generating facility is owned by Company B and is a separate facility from the adjacent coal mine.
Must the Form R report be submitted by July 1 for facilities that were in operation during part of the reporting year, but which were closed by December 31?
Yes. A facility that operated during any part of a reporting year must report if it meets the NAICS code, employee, and chemical activity thresholds for that reporting year.
Electricity generating unit 1 (EGU 1) is subject to EPCRA section 313 and is owned by Company A. EGU 2 is also subject to EPCRA and is adjacent to EGU 1. EGU 2 is owned by a joint venture, 80 percent of which is owned by Company A and 20 percent of which is owned by Company B. Are EGF’s 1 and 2 two separate facilities for the purpose of EPCRA section 313?
No. Because Company A owns the majority share in the joint venture, Company A owns EGU 2 and therefore owns EGUs 1 and 2. Because EGU 1 and 2 are adjacent to one another and have the same owner, they constitute one facility. As one facility, the owner or operator should consider the toxic chemicals and operations at both establishments for threshold determinations and release and other waste management calculations.
Two distinct NAICS code operations that are covered under EPCRA section 313 (e.g., an electricity generating facility and a cement plant) are located on adjacent properties and are owned by the same parent company. The two operations are operated completely independently of one another (e.g., separate accounting procedures, employees, etc.). Are these two operations considered one facility under EPCRA section 313?
Yes. Under EPCRA section 313 a facility is defined as: 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 (40 CFR Section 372.3). Because these two operations are located on adjacent properties and are owned by the same person they are considered one facility for EPCRA section 313 reporting purposes.
In Alaska several fish processors have factories on ships. They use ammonia and chlorine in their fish processing operations. Is each ship a covered facility under Section 313 or is the whole group of ships (all of which belong to one company) a covered facility?
A facility is defined as all buildings, equipment, structures, and other stationary items which are located on a single site or adjacent or contiguous sites owned or operated by the same person (40 CFR Section 372.3). A ship is not a facility as defined under the Section 313 regulations. It is not stationary and it is not located on a single site (if it moves to other locations). Therefore, the ships should not report even if they are in a covered NAICS code.
A recently constructed facility which has not begun production but is in a covered NAICS code has used several listed toxic chemicals in preparing a reactor bed and distillation columns for manufacturing. Is the facility required to report these chemicals if they exceed the threshold levels?
Yes, assuming the facility also meets the employee threshold of at least ten full-time employees or the equivalent. Once a covered facility has been constructed, any toxic chemicals used to prepare production equipment for manufacturing activities must be included towards the threshold determinations that reporting year. This includes start-up activities.