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.
When should an individual’s time spent working for a facility be counted for purposes of determining whether or not a facility exceeds the 20,000-hour employee threshold?
If an individual is employed by the facility or by the facility’s parent company to work for the facility, then all of the hours worked by the individual for the facility should be counted toward the 20,000-hour employee threshold. For example, a headquarters engineer spends most of her time at headquarters, but some of her time is spent at a covered facility. The time the engineer spends at the covered facility and the time the engineer spends working for the covered facility while at headquarters should be included in the facility’s employee threshold determination. If the individual is hired by the facility (or by the facility’s parent company) as a contractor to work at the facility and is based at the facility, then all hours worked by the contractor should be counted. If the individual is not an owner, contractor, nor an employee of the facility, then the individual’s time spent working at the facility should not be counted toward the 20,000-hour employee threshold. For example, the time spent by individuals who are performing intermittent service functions at the facility, such as municipal trash collectors or the electric utility company repairing power lines, should not be counted.
Under the Section 313 regulations, a full-time employee is defined as, ‘...mean 2,000 hours per year of full-time equivalent employment.’ The definition of full-time employee goes on to stipulate that (a) facility would calculate the number of full-time employees by totaling the hours worked during the reporting year by all employees including contract employees and dividing the total by 2,000 hours (40 CFR Section 372.3). It follows that 20,000 hours worked is equivalent to 10 full-time employees. When calculating the total number of hours worked by all employees during the reporting year should vacation and sick leave used be included toward the 20,000 hour threshold?
Yes. When making the full-time employee determination the facility should consider all paid vacation and sick leave used as hours worked by each employee who claims such vacation or sick leave. If the facility meets or exceeds the 20,000-hour threshold (including vacation and sick leave), the facility is considered to have 10 or more full-time employees (40 CFR Section 372.3).
Would a facility with nine full-time employees and four part-time employees be required to report under Section 313?
The total hours worked by all employees should be reviewed. A full-time employee is defined on a time equivalent basis of 2,000 labor hours per year (40 CFR Section 372.3). If the total hours worked by all employees at a facility, including contractors, is 20,000 hours or more, the criterion for number of employees has been met. Therefore, if combined, the 13 employees of the facility worked 20,000 hours or more, the facility has satisfied the employee threshold.
A manufacturing facility has 8 employees. Each employee worked 2,500 hours in the reporting year. Consequently, the total number of hours worked by all employees at this facility is 20,000 hours. How should the facility determine whether it meets the 10 full-time employee threshold for purposes of reporting under Section 313?
One full-time employee is equal to 2,000 hours (40 CFR Section 372.3). The number of full-time employees is determined by dividing the total number of hours worked, 20,000, by 2,000 hours, or 10 full-time employees. Therefore, even though only eight persons worked at this facility, the number of hours worked is equivalent to 10 full-time employees and this facility has met the employee criterion.
Is an ‘employee’ a group of people who work 2,000 hours per year (such as three people who work 1/3 time) or is it one person who works full-time?
An ‘employee’ can be either a single person or a group of people, including the owner. The regulatory criterion is that the total hours worked by all employees is equal to or greater than 20,000 for that reporting year at the facility.
Does the full-time employee determination include the hours worked by sales staff whose office is included in the same building as the production staff?
Yes. All persons employed by a facility regardless of function (e.g., sales, clerical) or location count toward the employee threshold determination (40 CFR Section 372.22(a)).
An electricity generating facility has maintenance staff for maintaining the electricity distribution system. Staff are based on-site. When counting the hours of this staff, the electricity generating facility is over the 20,000 hours or 10 FTE (full-time employee) threshold. Without counting the management staff hours, the electricity generating facility falls below the 20,000 hours or 10 FTE threshold. Because these hours are not directly in support of the electricity generating portion of the facility (i.e., they are in support of the distribution system), do they count toward the 20,000 hours or 10 FTE threshold?
Yes. Hours worked by employees who support the distribution system must be included in the facility’s employee determination. All of the hours worked by all employees based at a covered facility must be considered toward the facility’s employee threshold, regardless of whether the activities they perform are associated with covered activities.
The employee threshold under Section 313 is 10 full-time employees or the equivalent, 20,000 work hours/year. This includes all sales staff, clerical staff, and contractors. Would this also include delivery truck drivers who returned to the facility only to pick up a shipment and then leave again?
If the truck drivers are employed by the facility or the facility’s parent company, and paid by the facility or by the parent company, then they are employees of the facility and would be factored into the employee threshold. If they are based at the covered facility, all of the hours worked by the truck drivers for the facility are counted towards the employee threshold. If the truck drivers are not based at the covered facility, then only their time spent servicing the covered facility is considered towards the employee threshold. However, facilities are not required to count hours worked by contract drivers.
A facility employs drivers to pick up and deliver its products. Some of the drivers use the facility’s trucks, while other drivers use trucks not owned by the facility. Should the facility count all driver hours towards its employee threshold, regardless of whose trucks the drivers use?
Yes. Hours worked directly for the facility by drivers that are employed by the facility are counted, regardless of whose truck they use.
A petroleum bulk terminal contracts with truck jobbers who purchase its petroleum products. The terminal has no direct control over the activities of the truck drivers. Are the hours worked by these jobbers and their drivers at the petroleum terminal counted towards the terminal’s employee threshold calculation?
No. The hours worked by the truck jobbers do not directly support the terminal. The jobbers purchase the petroleum products and function as customers to the terminal. However, the petroleum bulk terminal must consider these activities toward its processing threshold.
Facility A manufactures and sells machinery. Facility A sends employees to customers’ sites to repair and service the machinery. These employees are not based at Facility A. For example, some of the employees pick up company vehicles and needed supplies from rented property before going to the client’s site. Facility A also has employees who work directly for the facility, but work entirely from their homes. Should Facility A consider hours worked by these employees in making the employee threshold determination?
Yes. If an individual is employed by a covered facility and works for the covered facility, then all hours worked by that individual must be counted towards the 20,000-hour employee limit, regardless of where the employee works (i.e., on-site or off-site).
A facility covered under EPCRA section 313 has nine full-time employees and one part-time employee. The facility also has an employee who works at the facility, but does not draw a salary. Should the hours worked by the employee who does not draw a salary be counted towards the employee threshold for the facility?
Yes. Even though the employee does not draw a salary, he/she is still working for the facility. Therefore, the employee’s hours must be counted towards that facility’s employee threshold.
A covered facility that is part of a larger corporate entity has corporate employees located on-site. These employees do not directly support the activities that are conducted at the facility where they are located; rather, their time is spent working for that facility as well as for other facilities that are part of the same corporate entity. Does the facility where these employees are located have to count the hours worked by these employees toward its employee threshold?
Yes. The facility where these employees are located should count the hours worked by them toward the facility’s employee threshold, unless the facility’s time keeping system allows it to track the time worked by these employees according to the actual facility for which they are working. If a facility can demonstrate through time keeping records that the time worked by these employees was in support of another facility within the same corporate entity, then it does not have to count the hours worked by these employees towards its own employee threshold. The facility that these employees directly support would have to count the hours toward its employee threshold.
If an individual both owns and works at a facility, how should the owners time be accounted for when determining whether or not the facility exceeds the 20,000 hour employee threshold?
The owner must be counted as the equivalent of a full-time employee of the facility and his/her hours must be applied toward the 20,000-hour employee threshold.