Section 313 of the Emergency Planning and RIGHT-TO-KNOW Act (EPCRA) requires facilities to file a Toxic Release Inventory (TRI) report annually for each Section 313 chemical exceeding an activity threshold. Section 313 chemical list contains over 600 chemicals and chemical categories. Facilities exceeding an activity threshold must report if they are in a covered sector and have 10 or more employees. The TRI reports to the U.S. EPA, and either designated state officials or designated tribal office.

The industrial sectors covered are:

-Manufacturing: Facilities engaged in the mechanical or chemical transformation of materials or substances into new products.

-Metal mining: Not including metal mining services, and uranium, radium, and vanadium ores.

-Coal mining: Not including g coal mining services.

-Electrical utilities: Limited to facilities that combust coal and /or oil for the purpose of generating electricity for distribution in commerce.

-Treatment, Storage, and Disposal facilities: Limited to facilities regulated under the Resource Conservation and Recovery Act, Subtitle C, 42 U.S.C. Section 6921 et seq.

-Solvent recovery services: Limited to facilities primarily engaged in solvent recovery services on a contract or fee basis.

-Chemical distributors: Facilities engaged in the wholesale distribution of chemicals and allied products.

-Petroleum bulk terminals: Facilities engaged in the wholesale distribution of crude petroleum and petroleum products from bulk liquid storage facilities.

North American Industry Classification System (NAICS) codes are used for TRI reporting. The TRI-covered industries NAICS are: 212 mining, 221 utilities, 31-33 manufacturing, all other miscellaneous manufacturing (including 1119, 1131, 2111, 4883, 5417, 8114), 424 merchant wholesalers (non-durable goods), 425 wholesale electronic markets and agents brokers, 511-512-519 publishing, 562 hazardous waste  and federal facilities. Please note that for many of these NAICS codes, there are reporting exceptions.

Federal facilities (covered by Executive Order 13423 and its implementing instructions) that require TRI reporting include: facilities owned or operated by Executive Branch agencies, facilities with 10 or more full-time employees, facilities that exceed manufacture, process, or otherwise use thresholds of a listed chemical, government unit responsible for reporting on activities conducted at Federal facilities and facilities that do not change existing requirements of private contractors of government owned contractor operated (GOCO) facility report. “Facilities” determine whether or not TRI reporting is required. “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 (or by any person which controls, is controlled by, or under common control with, such person).” (EPCRA 329 (4)).

Employee threshold of facilities that require TRI reporting are those who have 10 or more full-time employee equivalents (20,000 hours). These employees must work for the facility. This includes operational staff, administrative staff, contractors, dedicated sales staff, company driver, off-site direct corporate support. It does not include contract drivers or contractor performing intermittent service functions such as janitorial services. Add all hours from part-time and full-time employees.

Threshold calculations for each activity are based on cumulative quantities of each Section 313 chemical over the reporting year for the whole family. Toxic chemical activity thresholds are treated separately. Each chemical is to be classified into manufacture, process, or otherwise use. Amounts in each activity should be compared to the toxic chemical’s applicable threshold. If any threshold is exceeded, a TRI report must be prepared and submitted for that toxic chemical. If a facility manufactured more than 25,000 pounds of the chemical in the reporting year, processed more than 25,000 pounds of the chemical in the reporting year, or otherwise used more than 10,000 pounds of the chemical in the reporting year, the facility meeting the first two applicability criteria for reporting must file a TRI report for a non-PBT (Persistent, Bioaccumulative, Toxic) Section 313 chemical. Within the list of 600 plus chemicals and chemical categories, there is a subset designated as being of special concern and commonly referred to as PBT chemicals. PBT chemicals have lower thresholds and different reporting requirements than the other TRI chemicals. 20 chemicals and chemical compound categories are classified as PBTs and have lower reporting thresholds. The current list of Section 313 chemicals and chemical categories contains over 600 individual chemicals and chemical categories. There are 4 parts to the chemical list. These are: individual chemicals alphabetically by name, individual chemicals by CAS #, chemicals with qualifiers and chemical categories. The list can change, so check every year. Changes are listed in the front of the RFI, on the TRI website, and in TRI-MEweb. Qualifiers are listed chemicals with parenthetic qualifiers subject to TRI reporting only if manufactures, processed, or otherwise used in specifies form.              

Manufacturing activities generating a Section 313 chemical include intentionally producing chemicals for sale, distribution, and on-site use or processing, coincidentally producing chemicals as impurities or by-products at any point at the facility, including waste treatment and fuel combustion, and importing. Processing is the preparation of a Section 313 chemical, after its manufacture, for distribution in commerce. The processing activities that require TRI reporting include use as a reactant to manufacture another substance or product, add as a formulation component, incorporated as an article component, repackage for distribution, quantities sent off-site for recycling, and incidentally include as an impurity. Repackaging includes from container to taker truck and vice versa, between similar size containers, and via pipeline to/from a tank. It does NOT include sampling without repackaging or re-labeling. Repackaging without distribution into commerce and transferring to a storage tank for mere storage are not processing. Some examples of otherwise use activities (includes most activities that are NOT manufacturing or processing) that require reporting are: chemical processing aid, manufacturing aid, ancillary activities. Managing wastes received from off-site also counts as otherwise use. This includes disposal, treatment for destruction on-site, or stabilization that does not result in further distribution in commerce are considered otherwise use if: Section 313 chemical was received from off-site for the purposes of further waste management, or Section 313 chemical was manufactured as a result of waste management activities on materials received from off-site for the purpose of further waste management, on-site energy recovery is an otherwise use activity, and waste management activities, including on-site recycling, treatment for destruction, waste stabilization and release/disposal of Section 313 chemicals in wastes generated on-site are not threshold activities.

Following, are ways to calculate activity thresholds. The threshold quantity is the total amount manufactures, processed, or otherwise used, NOT the amount release. Calculate the total amount of Section 313 chemical used for a specific threshold activity. For threshold determinations, Section 313 chemicals recycled from spent or contaminated materials or Section 313 chemicals directly reused. Calculations for reporting waste management may be different from threshold quantities. To calculate the threshold determination for compound categories, one must count together all compounds within the same chemical category for each activity, even if different compounds within a category are used in separate operation, and consider the entire weight of all the different chemical compounds in the same chemical category when determining thresholds. Please note that calculations for release and other waste management estimates of metal compounds based on the parent metal weight only; and for nitrate compounds are based on weight of nitrate ion only. Activities that, alone, do NOT constitute a threshold activity include: storage, remediation of on-site contamination (assuming no listed chemicals are manufactured during remediation), re-labeling without repackaging, direct reuse onsite, on-site recycling (not including wastes received from off-site), transfers sent off-site for further waste management (not including recycling), and repackaging (and blending, if any) of waste fuels for burning for energy recovery. Please note that while these activities are not included in the threshold determination, releases and wastes from these activities are not exempt from reporting if threshold is exceeded through other activities, unless specifically eligible for one of the reporting exemptions.

There are reporting exemptions in TRI reporting. If an exemption applies, then the amount of Section 313 chemical subject to the exemption does not have to be included in threshold determinations or release reporting. Recognize that exemptions only apply to certain limited circumstances. These are some type of exemptions: de minimis, article, laboratory activities, NAICS code specific (coal mining extraction activities and metal mining overburden), and otherwise use exemptions (motor vehicle maintenance, routine janitorial or facility grounds maintenance, structural components, personal use, and intake water and air).

De minimis exemption: The quantity of a non-PBT Section 313 chemical in a mixture or other trade name product is eligible for the de minimis exemption if the chemical is an OSHA-defined carcinogen present at a concentration of less than 0.1% or any other non-PBT TRI chemical present at a concentration of less than 1%. The TRI de minimis level appears next to each chemical on the chemical list in Table II of the TRI Reporting Forms and Instructions. Here is how it works: de minimis exemption generally applies to non-PBT chemicals in mixtures or trade name products received from off-site, including imported, and coincidentally manufactured as impurities that remain in products distributed in commerce. De minimis exemption does not apply to manufactured chemicals (this includes by-products produced from manufacturing, processing, otherwise use, or any waste management), wastes received from off-site, or PBT chemicals.

Article exemption: To qualify for the article exemption, the article must be formed into a specific shape or design during manufacture; and has end-use functions dependent in whole or in part on its shape or design during end-use; and does NOT release a Section 313 chemical under normal processing or use conditions at a facility. Releases of a Section 313 chemical from an article may negate the exemption. To maintain the article status, total releases from all like items must be in a form having a specific shape or design; or recycled, directly reused; or 0.5 pound or less released per year. If more than 0.5 pound per year of a Section 313 chemical is released from all like items in a form not having a specific shape or design and is not recycled or directly reused, none of the items meet the articles exemption. The end use must be dependent upon the item’s initial shape or design. Some examples of article exemptions are wire that is cut to specified lengths where the wastes include off-spec cuts and dust, and fluorescent light bulbs that are installed containing mercury and the used bulbs are crushed for recycling.

Laboratory activity exemptions: Section 313 chemicals used in these laboratory activities under the direct supervision of a technically qualified individual are exempt from threshold and release: sampling and analysis, research and development, quality assurance, and quality control. Section 313 chemicals used in the laboratory activities are not exempt: specialty chemical production, pilot-scale plant operation, activities not conducted in lab, and support services (photo processing, equipment maintenance/cleaning).

Motor vehicle maintenance exemption: Section 313 chemicals used to maintain vehicles operated by the facility are eligible for the exemption from threshold determinations. Motor vehicles include cars, trucks, missiles, spacecraft, tanks, and forklifts. Motor vehicle maintenance includes body repairs, parts washing, and fueling and adding other fluids.

Routine janitorial or facility grounds maintenance exemption: Section 313 chemicals contained in products used for non-process related routine janitorial or facility grounds maintenance are eligible for exemptions: phenol in bathroom disinfectants, pesticides or fertilizers used on lawns, and otherwise use exemption. Section 313 chemicals used in the following activities are not exempt: facility equipment maintenance and cleaning or maintenance activities that are directly associated with or integral to the production process at the facility. Note that chemicals otherwise used in janitorial or grounds maintenance activities may not be exempt if part of your facility’s “process” is to provide these services (e.g., federal hospitals, prisons, parks). Also, chemicals manufactured during routine janitorial or facility ground maintenance are not exempt.

Structural component exemption: Section 313 chemicals used as structural components are eligible for exemption if they are part of the facility structure and are not processed related. Non-process-related structural items eligible for the exemption include potable water pipes and other non-process-related pipes and structures. Processed-related items/uses not eligible for the exemption include refractory brick, boiler tubes, process-related pipes, anodes used in electroplating, grinding wheels, metal working tools and structural components that are integral to a non-industrial facility’s “process”.

Other Section 313 “otherwise use” exemptions: Section 313 chemicals contained in non-process related items for employee personal use. Non-federal facilities include HCFC 22 in air conditioners used solely for employee comfort, chlorine used to treat on-site potable water, and phenol used in a facility medical dispensary. Federal facilities include those that do not include TRI chemicals used for providing services to non-employees. Another exemption is Section 313 chemicals found in intake water and air.

Sector specific exemptions: Coal mining extraction activities are exempt from threshold determination and release reporting. Coal extraction is defined as physical removal or exposure of ore, coal, minerals, waste rock. Or overburden prior to beneficiation, and encompasses all extraction-related activities prior to beneficiation. Chemicals in metal mining overburden that are processed or otherwise used are specifically exempt from TRI reporting. Overburden is defined as unconsolidated material that overlies a deposit of useful materials or ores.

By Justin Keeling, Hopf Environmental Associate - February 2014