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Title 40Chapter ISubchapter JPart 372 → Subpart B


Title 40: Protection of Environment
PART 372—TOXIC CHEMICAL RELEASE REPORTING: COMMUNITY RIGHT-TO-KNOW


Subpart B—Reporting Requirements


Contents
§372.20   Process for modifying covered chemicals and facilities.
§372.22   Covered facilities for toxic chemical release reporting.
§372.23   SIC and NAICS codes to which this Part applies.
§372.25   Thresholds for reporting.
§372.27   Alternate threshold and certification.
§372.28   Lower thresholds for chemicals of special concern.
§372.29   Thresholds for per- and polyfluoroalkyl substances.
§372.30   Reporting requirements and schedule for reporting.
§372.38   Exemptions.

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§372.20   Process for modifying covered chemicals and facilities.

(a) Request to add a facility to the TRI list of covered facilities.

(b) The Administrator, on his own motion or at the request of a Governor of a State (with regard to facilities located in that State) or a Tribal Chairperson or equivalent elected official (with regard to facilities located in the Indian country of that Tribe), may apply the requirements of section 313 of Title III to the owners and operators of any particular facility that manufactures, processes, or otherwise uses a toxic chemical listed under subsection (c) of section 313 of Title III if the Administrator determines that such action is warranted on the basis of toxicity of the toxic chemical, proximity to other facilities that release the toxic chemical or to population centers, the history of releases of such chemical at such facility, or such other factors as the Administrator deems appropriate.

(c) Petition to add or delete a chemical from TRI list of covered chemicals.

(d) In general. (1) Any person may petition the Administrator to add or delete a chemical to or from the list described in subsection (c) of section 313 of Title III on the basis of the criteria in subparagraph (A) or (B) of subsection (d)(2) and (d)(3) of section 313 of Title III. Within 180 days after receipt of a petition, the Administrator shall take one of the following actions:

(i) Initiate a rulemaking to add or delete the chemical to or from the list, in accordance with subsection (d)(2) or (d)(3) of section 313 of Title III.

(ii) Publish an explanation of why the petition is denied.

(2) State and Tribal petitions. A State Governor, or a Tribal Chairperson or equivalent elected official, may petition the Administrator to add or delete a chemical to or from the list described in subsection (c) of section 313 of Title III on the basis of the criteria in subparagraph (A), (B), or (C) of subsection (d)(2) of section 313 of Title III. In the case of such a petition from a State Governor, or a Tribal Chairperson or equivalent elected official, to delete a chemical, the petition shall be treated in the same manner as a petition received under paragraph (d)(1) of this section. In the case of such a petition from a State Governor, or a Tribal Chairperson or equivalent elected official, to add a chemical, the chemical will be added to the list within 180 days after receipt of the petition, unless the Administrator:

(i) Initiates a rulemaking to add the chemical to the list, in accordance with subsection (d)(2) of section 313 of Title III, or

(ii) Publishes an explanation of why the Administrator believes the petition does not meet the requirement of subsection (d)(2) of section 313 of Title III for adding a chemical to the list.

[77 FR 23418, Apr. 19, 2012]

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§372.22   Covered facilities for toxic chemical release reporting.

A facility that meets all of the following criteria for a calendar year is a covered facility for that calendar year and must report under §372.30.

(a) The facility has 10 or more full-time employees.

(b) The facility is in a Standard Industrial Classification (SIC) (as in effect on January 1, 1987) major group or industry code listed in §372.23(a), for which the corresponding North American Industry Classification System (NAICS) (as in effect on January 1, 2017, for reporting year 2018 and thereafter) subsector and industry codes are listed in §§372.23(b) and 372.23(c) by virtue of the fact that it meets one of the following criteria:

(1) The facility is an establishment with a primary SIC major group or industry code listed in §372.23(a), or a primary NAICS subsector or industry code listed in §372.23(b) or §372.23(c).

(2) The facility is a multi-establishment complex where all establishments have primary SIC major group or industry codes listed in §372.23(a), or primary NAICS subsector or industry codes listed in §372.23(b) or §372.23(c).

(3) The facility is a multi-establishment complex in which one of the following is true:

(i) The sum of the value of services provided and/or products shipped and/or produced from those establishments that have primary SIC major group or industry codes listed in §372.23(a), or primary NAICS subsector or industry codes listed in §372.23(b) or §372.23(c) is greater than 50 percent of the total value of all services provided and/or products shipped from and/or produced by all establishments at the facility.

(ii) One establishment having a primary SIC major group or industry code listed in §372.23(a), or a primary NAICS subsector or industry code listed in §372.23(b) or §372.23(c) contributes more in terms of value of services provided and/or products shipped from and/or produced at the facility than any other establishment within the facility.

(c) The facility manufactured (including imported), processed, or otherwise used a toxic chemical in excess of an applicable threshold quantity of that chemical set forth in §372.25, §372.27, §372.28, or §372.29.

[53 FR 4525, Feb. 16, 1988, as amended at 59 FR 61501, Nov. 30, 1994; 62 FR 23892, May 1, 1997; 64 FR 58750, Oct. 29, 1999; 71 FR 32474, June 6, 2006; 73 FR 32470, June 9, 2008; 78 FR 42882, July 18, 2013; 82 FR 39041, Aug. 17, 2017; 82 FR 60909, Dec. 26, 2017; 85 FR 37357, June 22, 2020]

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§372.23   SIC and NAICS codes to which this Part applies.

The requirements of this part apply to facilities in the following SIC and NAICS codes. This section contains three listings. Paragraph (a) of this section lists the SIC codes to which this part applies. Paragraph (b) of this section lists the NAICS codes that correspond to SIC codes 20 through 39 to which this part applies. Paragraph (c) of this section lists the NAICS codes that correspond to SIC codes other than SIC codes 20 through 39 to which this part applies.

(a) SIC codes.

Major group or industry code Exceptions and/or limitations
10Except 1011, 1081, and 1094.
12Except 1241.
20 through 39
4911, 4931, 4939Limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce.
4953Limited to facilities regulated under the Resource Conservation and Recovery Act, 42 U.S.C. 6921, et seq.
5169
5171
7389Limited to facilities primarily engaged in solvent recovery services on a contract or fee basis.

(b) NAICS codes that correspond to SIC codes 20 through 39.

Subsector code or Industry codeExceptions and/or limitations
311—Food ManufacturingExcept 311119—Exception is limited to facilities previously classified under SIC 0723, Crop Preparation Services for Market, Except Cotton Ginning;
   Except 311340—Exception is limited to facilities previously classified under SIC 5441, Candy, Nut, and Confectionery Stores;
   Except 311352—Exception is limited to facilities previously classified under SIC 5441, Candy, Nut, and Confectionery Stores;
   Except 311611—Exception is limited to facilities previously classified under SIC 0751, Livestock Services, Except Veterinary;
   Except 311612—Exception is limited to facilities previously classified under SIC 5147, Meats and Meat Products;
   Except 311811—Exception is limited to facilities previously classified under SIC 5461, Retail Bakeries;
312—Beverage and Tobacco Product ManufacturingExcept 312112—Exception is limited to facilities previously classified under SIC 5149, Groceries and Related Products, Not Elsewhere Classified;
   Except 312230—Exception is limited to facilities previously classified under SIC 7389, Business Services, Not Elsewhere Classified, except facilities primarily engaged in solvent recovery services on a contract or fee basis;
313—Textile MillsExcept 313310—Exception is limited to facilities previously classified under SIC 5131, Piece Goods, Notions, and Other Dry Goods; and facilities previously classified under SIC 7389, Business Services, Not Elsewhere Classified, except facilities primarily engaged in solvent recovery services on a contract or fee basis;
314—Textile Product MillsExcept 314120—Exception is limited to facilities previously classified under SIC 5714, Drapery, Curtain, and Upholstery Stores;
   Except 314999—Exception is limited to facilities previously classified under SIC 7389, Business Services, Not Elsewhere Classified, except facilities primarily engaged in solvent recovery services on a contract or fee basis;
315—Apparel ManufacturingExcept 315220—Exception is limited to facilities previously classified under SIC 5699, Miscellaneous Apparel and Accessory Stores;
316—Leather and Allied Product Manufacturing
321—Wood Product Manufacturing
322—Paper Manufacturing
323—Printing and Related Support ActivitiesExcept 323111—Exception is limited to facilities previously classified under SIC 7334, Photocopying and Duplicating Services;
324—Petroleum and Coal Products Manufacturing
325—Chemical ManufacturingExcept 325998—Exception is limited to facilities previously classified under SIC 7389, Business Services, Not Elsewhere Classified;
326—Plastics and Rubber Products ManufacturingExcept 326212—Exception is limited to facilities previously classified under SIC 7534, Tire Retreading and Repair Shops;
327—Nonmetallic Mineral Product ManufacturingExcept 327110—Exception is limited to facilities previously classified under SIC 5719, Miscellaneous Home Furnishings Stores;
331—Primary Metal Manufacturing
332—Fabricated Metal Product Manufacturing
333—Machinery Manufacturing
334—Computer and Electronic Product ManufacturingExcept 334614—Exception is limited to facilities previously classified under SIC 7372, Prepackaged Software; and to facilities previously classified under SIC 7819, Services Allied to Motion Picture Production;
335—Electrical Equipment, Appliance, and Component ManufacturingExcept 335312—Exception is limited to facilities previously classified under SIC 7694, Armature Rewinding Shops;
336—Transportation Equipment Manufacturing
337—Furniture and Related Product ManufacturingExcept 337110—Exception is limited to facilities previously classified under SIC 5712, Furniture Stores;
Except 337121—Exception is limited to facilities previously classified under SIC 5712, Furniture Stores;
   Except 337122—Exception is limited to facilities previously classified under SIC 5712, Furniture Stores;
339—Miscellaneous ManufacturingExcept 339113—Exception is limited to facilities previously classified under SIC 5999, Miscellaneous Retail Stores, Not Elsewhere Classified;
   Except 339115—Exception is limited to lens grinding facilities previously classified under SIC 5995, Optical Goods Stores;
   Except 339116—Exception is limited to facilities previously classified under SIC 8072, Dental Laboratories;
111998—All Other Miscellaneous Crop FarmingLimited to facilities previously classified under SIC 2099, Food Preparations, Not Elsewhere Classified;
113310—Logging
211130—Natural Gas ExtractionLimited to facilities that recover sulfur from natural gas and previously classified under SIC 2819, Industrial Inorganic Chemicals, Not Elsewhere Classified;
212324—Kaolin and Ball Clay MiningLimited to facilities operating without a mine or quarry and previously classified under SIC 3295, Minerals and Earths, Ground or Otherwise Treated;
212325—MiningLimited to facilities operating without a mine or quarry and previously classified under SIC 3295, Minerals and Earths, Ground or Otherwise Treated;
212393—Other Chemical and Fertilizer Mineral MiningLimited to facilities operating without a mine or quarry and previously classified under SIC 3295, Minerals and Earths, Ground or Otherwise Treated;
212399—All Other Nonmetallic Mineral MiningLimited to facilities operating without a mine or quarry and previously classified under SIC 3295, Minerals and Earths, Ground or Otherwise Treated;
488390—Other Support Activities for Water TransportationLimited to facilities previously classified under SIC 3731, Shipbuilding and Repairing;
511110—Newspaper Publishers
511120—Periodical Publishers
511130—Book Publishers
511140—Directory and Mailing List PublishersExcept facilities previously classified under SIC 7331, Direct Mail Advertising Services;
511191—Greeting Card Publishers
511199—All Other Publishers
512230—Music PublishersExcept facilities previously classified under SIC 8999, Services, Not Elsewhere Classified;
512250—Record Production and DistributionLimited to facilities previously classified under SIC 3652, Phonograph Records and Prerecorded Audio Tapes and Disks;
519130—Internet Publishing and Broadcasting and Web Search PortalsLimited to Internet publishing facilities previously classified under SIC 2711, Newspapers: Publishing, or Publishing and Printing; facilities previously classified under SIC 2721, Periodicals: Publishing, or Publishing and Printing; facilities previously classified under SIC 2731, Books: Publishing, or Publishing and Printing; facilities previously classified under SIC 2741, Miscellaneous Publishing; facilities previously classified under SIC 2771, Greeting Cards; Except for facilities primarily engaged in web search portals;
541713—Research and Development in NanotechnologyLimited to facilities previously classified under SIC 3764, Guided Missile and Space Vehicle Propulsion Units and Propulsion Unit Parts; and facilities previously classified under SIC 3769, Guided Missile and Space Vehicle Parts and Auxiliary Equipment, Not Elsewhere Classified;
541715—Research and Development in the Physical, Engineering, and Life Sciences (except Nanotechnology and Biotechnology)Limited to facilities previously classified under SIC 3764, Guided Missile and Space Vehicle Propulsion Units and Propulsion Unit Parts; and facilities previously classified under SIC 3769, Guided Missile and Space Vehicle Parts and Auxiliary Equipment, Not Elsewhere Classified;
811490—Other Personal and Household Goods Repair and MaintenanceLimited to facilities previously classified under SIC 3732, Boat Building and Repairing.

(c) NAICS codes that correspond to SIC codes other than SIC codes 20 through 39.

Subsector or Industry codeExceptions and/or limitations
212111—Bituminous Coal and Lignite Surface Mining
212112—Bituminous Coal and Underground Mining
212113—Anthracite Mining
212221—Gold Ore Mining
212222—Silver Ore Mining
212230—Copper, Nickel, Lead, and Zinc Mining
212299—Other Metal Ore Mining
221111—Hydroelectric Power GenerationLimited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce.
221112—Fossil Fuel Electric Power GenerationLimited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce.
221113—Nuclear Electric Power GenerationLimited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce.
221118—Other Electric Power GenerationLimited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce.
221121—Electric Bulk Power Transmission and ControlLimited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce.
221122—Electric Power DistributionLimited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce.
221330—Steam and Air Conditioning SupplyLimited to facilities previously classified under SIC 4939, Combination Utility Services, Not Elsewhere Classified.
424690—Other Chemical and Allied Products Merchant Wholesalers
424710—Petroleum Bulk Stations and Terminals
425110—Business to Business Electronic MarketsLimited to facilities previously classified in SIC 5169, Chemicals and Allied Products, Not Elsewhere Classified.
425120—Wholesale Trade Agents and BrokersLimited to facilities previously classified in SIC 5169, Chemicals and Allied Products, Not Elsewhere Classified.
562112—Hazardous Waste CollectionLimited to facilities primarily engaged in solvent recovery services on a contract or fee basis and previously classified under SIC 7389, Business Services, Not Elsewhere Classified;
562211—Hazardous Waste Treatment and DisposalLimited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.
562212—Solid Waste LandfillLimited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.
562213—Solid Waste Combustors and IncineratorsLimited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.
562219—Other Nonhazardous Waste Treatment and DisposalLimited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.
562920—Materials Recovery FacilitiesLimited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq.

[71 FR 32474, June 6, 2006, as amended at 73 FR 32470, June 9, 2008; 78 FR 42882, July 18, 2013; 82 FR 60909, Dec. 26, 2017]

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§372.25   Thresholds for reporting.

Except as provided in §372.27, §372.28, and §372.29, the threshold amounts for purposes of reporting under §372.30 for toxic chemicals are as follows:

(a) With respect to a toxic chemical manufactured (including imported) or processed at a facility during the following calendar years:

1987—75,000 pounds of the chemical manufactured or processed for the year.

1988—50,000 pounds of the chemical manufactured or processed for the year.

1989 and thereafter—25,000 pounds of the chemical manufactured or processed for the year.

(b) With respect to a chemical otherwise used at a facility, 10,000 pounds of the chemical used for the applicable calendar year.

(c) With respect to activities involving a toxic chemical at a facility, when more than one threshold applies to the activities, the owner or operator of the facility must report if it exceeds any applicable threshold and must report on all activities at the facility involving the chemical, except as provided in §372.38.

(d) When a facility manufactures, processes, or otherwise uses more than one member of a chemical category listed in §372.65(c), the owner or operator of the facility must report if it exceeds any applicable threshold for the total volume of all the members of the category involved in the applicable activity. Any such report must cover all activities at the facility involving members of the category.

(e) A facility may process or otherwise use a toxic chemical in a recycle/reuse operation. To determine whether the facility has processed or used more than an applicable threshold of the chemical, the owner or operator of the facility shall count the amount of the chemical added to the recycle/reuse operation during the calendar year. In particular, if the facility starts up such an operation during a calendar year, or in the event that the contents of the whole recycle/reuse operation are replaced in a calendar year, the owner or operator of the facility shall also count the amount of the chemical placed into the system at these times.

(f) A toxic chemical may be listed in §372.65 with the notation that only persons who manufacture the chemical, or manufacture it by a certain method, are required to report. In that case, only owners or operators of facilities that manufacture that chemical as described in §372.65 in excess of the threshold applicable to such manufacture in this section or §372.27, §372.28, or §372.29 are required to report. In completing the reporting form, the owner or operator is only required to account for the quantity of the chemical so manufactured and releases associated with such manufacturing, but not releases associated with subsequent processing or use of the chemical at that facility. Owners and operators of facilities that solely process or use such a chemical are not required to report for that chemical.

(g) A toxic chemical may be listed in §372.65 with the notation that it is in a specific form (e.g., fume or dust, solution, or friable) or of a specific color (e.g., yellow or white). In that case, only owners or operators of facilities that manufacture, process, or use that chemical in the form or of the color, specified in §372.65 in excess of the threshold applicable to such activity in this section or §372.27, §372.28, or §372.29 are required to report. In completing the reporting form, the owner or operator is only required to account for the quantity of the chemical manufactured, processed, or used in the form or color specified in §372.65 and for releases associated with the chemical in that form or color. Owners or operators of facilities that solely manufacture, process, or use such a chemical in a form or color other than those specified by §372.65 are not required to report for that chemical.

(h) Metal compound categories are listed in §372.65(c). For purposes of determining whether any of the thresholds specified in this section or §372.27, §372.28, or §372.29 are met for metal compound category, the owner or operator of a facility must make the threshold determination based on the total amount of all members of the metal compound category manufactured, processed, or used at the facility. In completing the release portion of the reporting form for releases of the metal compounds, the owner or operator is only required to account for the weight of the parent metal released. Any contribution to the mass of the release attributable to other portions of each compound in the category is excluded.

[53 FR 4525, Feb. 16, 1988, as amended at 59 FR 61502, Nov. 30, 1994; 64 FR 58750, Oct. 29, 1999; 85 FR 37357, June 22, 2020]

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§372.27   Alternate threshold and certification.

(a) Except as provided in paragraph (e) of this section, with respect to the manufacture, process, or otherwise use of a toxic chemical, the owner or operator of a facility may apply an alternate threshold of 1 million pounds per year to that chemical if the owner or operator calculates that the facility would have an annual reportable amount of that toxic chemical not exceeding 500 pounds for the combined total quantities released at the facility, disposed within the facility, treated at the facility (as represented by amounts destroyed or converted by treatment processes), recovered at the facility as a result of recycle operations, combusted for the purpose of energy recovery at the facility, and amounts transferred from the facility to off-site locations for the purpose of recycle, energy recovery, treatment, and/or disposal. These volumes correspond to the sum of amounts reportable for data elements on EPA Form R (EPA Form 9350-1; Rev. 12/4/93) as Part II column B or sections 8.1 (quantity released), 8.2 (quantity used for energy recovery on-site), 8.3 (quantity used for energy recovery off-site), 8.4 (quantity recycled on-site), 8.5 (quantity recycled off-site), 8.6 (quantity treated on-site), and 8.7 (quantity treated off-site).

(b) If an owner or operator of a facility determines that the owner or operator may apply the alternate reporting threshold specified in paragraph (a) of this section for a specific toxic chemical, the owner or operator is not required to submit a report for that chemical under §372.30, but must submit a certification statement that contains the information required in §372.95. The owner or operator of the facility must also keep records as specified in §372.10(d).

(c) Threshold determination provisions of §372.25 and exemptions pertaining to threshold determinations in §372.38 are applicable to the determination of whether the alternate threshold has been met.

(d) Each certification statement under this section for activities involving a toxic chemical that occurred during a calendar year at a facility must be submitted to EPA and to the State in which the facility is located on or before July 1 of the next year. If the covered facility is located in Indian country, the facility shall submit the certification statement as described above to EPA and to the official designated by the Tribal Chairperson or equivalent elected official of the relevant Indian Tribe, instead of to the State.

(e) The provisions of this section do not apply to any chemicals listed in §372.28.

[59 FR 61502, Nov. 30, 1994, as amended at 64 FR 58750, Oct. 29, 1999; 71 FR 76944, Dec. 22, 2006; 74 FR 19005, Apr. 27, 2009; 77 FR 23418, Apr. 19, 2012]

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§372.28   Lower thresholds for chemicals of special concern.

(a) Notwithstanding §372.25 or §372.27, for the toxic chemicals set forth in this section, the threshold amounts for manufacturing (including importing), processing, and otherwise using such toxic chemicals are as set forth in this section.

(1) Chemical listing in alphabetic order.

Table 1 to Paragraph (a)(1)

Chemical nameCAS No.Reporting threshold
Aldrin00309-00-2100
Benzo(g,h,i)perylene00191-24-210
Chlordane00057-74-910
Heptachlor00076-44-810
Hexachlorobenzene00118-74-110
Isodrin00465-73-610
Lead (this lower threshold does not apply to lead when contained in a stainless steel, brass or bronze alloy)7439-92-1100
Mercury07439-97-610
Methoxychlor00072-43-5100
Octachlorostyrene29082-74-410
Pendimethalin40487-42-1100
Pentachlorobenzene00608-93-510
Polychlorinated biphenyl (PCBs)01336-36-310
Tetrabromobisphenol A00079-94-7100
Toxaphene08001-35-210
Trifluralin01582-09-8100

(2) Chemical categories in alphabetic order.

Table 2 to Paragraph (a)(2)

Category nameReporting threshold
(in pounds unless
otherwise noted)
Dioxin and dioxin-like compounds (Manufacturing; and the processing or otherwise use of dioxin and dioxin-like compounds if the dioxin and dioxin-like compounds are present as contaminants in a chemical and if they were created during the manufacturing of that chemical) (see §372.65(c) for a list of chemicals covered by this category)0.1 grams.
Hexabromocyclododecane (see §372.65(c) for a list of chemicals covered by this category)100
Lead Compounds100
Mercury compounds10
Polycyclic aromatic compounds (PACs) (see §372.65(c) for a list of chemicals covered by this category)100

(b) The threshold determination provisions under §372.25(c) through (h) and the exemptions under §372.38(b) through (h) are applicable to the toxic chemicals listed in paragraph (a) of this section.

[64 FR 58750, Oct. 29, 1999, as amended at 66 FR 4527, Jan. 17, 2001; 75 FR 72733, Nov. 26, 2010; 81 FR 85444, Nov. 28, 2016; 85 FR 42314, July 14, 2020]

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§372.29   Thresholds for per- and polyfluoroalkyl substances.

Notwithstanding §372.25, for the chemicals set forth in §372.65(d) and (e) the manufacturing, processing, and otherwise use thresholds are 100 pounds.

[85 FR 37357, June 22, 2020]

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§372.30   Reporting requirements and schedule for reporting.

(a) For each toxic chemical known by the owner or operator to be manufactured (including imported), processed, or otherwise used in excess of an applicable threshold quantity in §372.25, §372.27, §372.28, or §372.29 at its covered facility described in §372.22 for a calendar year, the owner or operator must submit to EPA and to the State in which the facility is located a completed EPA Form R (EPA Form 9350-1), EPA Form A (EPA Form 9350-2), and, for the dioxin and dioxin-like compounds category, EPA Form R Schedule 1 (EPA Form 9350-3) in accordance with the instructions referred to in subpart E of this part. If the covered facility is located in Indian country, the facility shall submit (to the extent applicable) a completed EPA Form R, Form A, and Form R Schedule 1 as described above to EPA and to the official designated by the Tribal Chairperson or equivalent elected official of the relevant Indian Tribe, instead of to the State.

(b)(1) The owner or operator of a covered facility is required to report as described in paragraph (a) of this section on a toxic chemical that the owner or operator knows is present as a component of a mixture or trade name product which the owner or operator receives from another person, if that chemical is imported, processed, or otherwise used by the owner or operator in excess of an applicable threshold quantity in §372.25, §372.27, §372.28, or §372.29 at the facility as part of that mixture or trade name product.

(2) The owner or operator knows that a toxic chemical is present as a component of a mixture or trade name product (i) if the owner or operator knows or has been told the chemical identity or Chemical Abstracts Service Registry Number of the chemical and the identity or Number corresponds to an identity or Number in §372.65, or (ii) if the owner or operator has been told by the supplier of the mixture or trade name product that the mixture or trade name product contains a toxic chemical subject to section 313 of the Act or this part.

(3) To determine whether a toxic chemical which is a component of a mixture or trade name product has been imported, processed, or otherwise used in excess of an applicable threshold in §372.25, §372.27, §372.28, or §372.29 at the facility, the owner or operator shall consider only the portion of the mixture or trade name product that consists of the toxic chemical and that is imported, processed, or otherwise used at the facility, together with any other amounts of the same toxic chemical that the owner or operator manufactures, imports, processes, or otherwise uses at the facility as follows:

(i) If the owner or operator knows the specific chemical identity of the toxic chemical and the specific concentration at which it is present in the mixture or trade name product, the owner or operator shall determine the weight of the chemical imported, processed, or otherwise used as part of the mixture or trade name product at the facility and shall combine that with the weight of the toxic chemical manufactured (including imported), processed, or otherwise used at the facility other than as part of the mixture or trade name product. After combining these amounts, if the owner or operator determines that the toxic chemical was manufactured, processed, or otherwise used in excess of an applicable threshold in §372.25, §372.27, §372.28, or §372.29, the owner or operator shall report the specific chemical identity and all releases of the toxic chemical on EPA Form R in accordance with the instructions referred to in subpart E of this part.

(ii) If the owner or operator knows the specific chemical identity of the toxic chemical and does not know the specific concentration at which the chemical is present in the mixture or trade name product, but has been told the upper bound concentration of the chemical in the mixture or trade name product, the owner or operator shall assume that the toxic chemical is present in the mixture or trade name product at the upper bound concentration, shall determine whether the chemical has been manufactured, processed, or otherwise used at the facility in excess of an applicable threshold as provided in paragraph (b)(3)(i) of this section, and shall report as provided in paragraph (b)(3)(i) of this section.

(iii) If the owner or operator knows the specific chemical identity of the toxic chemical, does not know the specific concentration at which the chemical is present in the mixture or trade name product, has not been told the upper bound concentration of the chemical in the mixture or trade name product, and has not otherwise developed information on the composition of the chemical in the mixture or trade name product, then the owner or operator is not required to factor that chemical in that mixture or trade name product into threshold and release calculations for that chemical.

(iv) If the owner or operator has been told that a mixture or trade name product contains a toxic chemical, does not know the specific chemical identity of the chemical and knows the specific concentration at which it is present in the mixture or trade name product, the owner or operator shall determine the weight of the chemical imported, processed, or otherwise used as part of the mixture or trade name product at the facility. Since the owner or operator does not know the specific identity of the toxic chemical, the owner or operator shall make the threshold determination only for the weight of the toxic chemical in the mixture or trade name product. If the owner or operator determines that the toxic chemical was imported, processed, or otherwise used as part of the mixture or trade name product in excess of an applicable threshold in§372.25, §372.27, §372.28, or §372.29, the owner or operator shall report the generic chemical name of the toxic chemical, or a trade name if the generic chemical name is not known, and all releases of the toxic chemical on EPA Form R in accordance with the instructions referred to in subpart E of this part.

(v) If the owner or operator has been told that a mixture or trade name product contains a toxic chemical, does not know the specific chemical identity of the chemical, and does not know the specific concentration at which the chemical is present in the mixture or trade name product, but has been told the upper bound concentration of the chemical in the mixture or trade name product, the owner or operator shall assume that the toxic chemical is present in the mixture or trade name product at the upper bound concentration, shall determine whether the chemical has been imported, processed, or otherwise used at the facility in excess of an applicable threshold as provided in paragraph (b)(3)(iv) of this section, and shall report as provided in paragraph (b)(3)(iv) of this section.

(vi) If the owner or operator has been told that a mixture or trade name product contains a toxic chemical, does not know the specific chemical identity of the chemical, does not know the specific concentration at which the chemical is present in the mixture or trade name product, including information they have themselves developed, and has not been told the upper bound concentration of the chemical in the mixture or trade name product, the owner or operator is not required to report with respect to that toxic chemical.

(c) A covered facility may consist of more than one establishment. The owner or operator of such a facility at which a toxic chemical was manufactured (including imported), processed, or otherwise used in excess of an applicable threshold may submit a separate Form R for each establishment or for each group of establishments within the facility to report the activities involving the toxic chemical at each establishment or group of establishments, provided that activities involving that toxic chemical at all the establishments within the covered facility are reported. If each establishment or group of establishments files separate reports then for all other chemicals subject to reporting at that facility they must also submit separate reports. However, an establishment or group of establishments does not have to submit a report for a chemical that is not manufactured (including imported), processed, otherwise used, or released at that establishment or group of establishments.

(d) Each report under this section for activities involving a toxic chemical that occurred during a calendar year at a covered facility must be submitted on or before July 1 of the next year. The first such report for calendar year 1987 activities must be submitted on or before July 1, 1988.

[53 FR 4525, Feb. 16, 1988; 53 FR 12748, Apr. 18, 1988, as amended at 56 FR 29185, June 26, 1991; 64 FR 58751, Oct. 29, 1999; 72 FR 26553, May 10, 2007; 77 FR 23418, Apr. 19, 2012; 85 FR 37357, June 22, 2020]

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§372.38   Exemptions.

(a) De minimis concentrations of a toxic chemical in a mixture. (1) If a toxic chemical is present in a mixture of chemicals at a covered facility and the toxic chemical is in a concentration in the mixture which is below 1 percent of the mixture, or 0.1 percent of the mixture in the case of a toxic chemical which is a carcinogen, a person is not required to consider the quantity of the toxic chemical present in such mixture when determining whether an applicable threshold has been met under §372.25 or determining the amount of release to be reported under §372.30. For purposes of the exemption in this paragraph (a), the following sources establish a chemical as a carcinogen or potential carcinogen:

(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.

(2) The exemption in this paragraph (a) applies whether the person received the mixture from another person, or the person produced the mixture, either by mixing the chemicals involved or by causing a chemical reaction which resulted in the creation of the toxic chemical in the mixture. However, this exemption applies only to the quantity of the toxic chemical present in the mixture. If the toxic chemical is also manufactured (including imported), processed, or otherwise used at the covered facility other than as part of the mixture or in a mixture at higher concentrations, in excess of an applicable threshold quantity set forth in §372.25, the person is required to report under §372.30. This exemption does not apply to toxic chemicals listed in §372.28, except for purposes of §372.45(d)(1).

(b) Articles. If a toxic chemical is present in an article at a covered facility, a person is not required to consider the quantity of the toxic chemical present in such article when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29 or determining the amount of release to be reported under §372.30. This exemption applies whether the person received the article from another person or the person produced the article. However, this exemption applies only to the quantity of the toxic chemical present in the article. If the toxic chemical is manufactured (including imported), processed, or otherwise used at the covered facility other than as part of the article, in excess of an applicable threshold quantity set forth in §372.25, §372.27, or §372.28, the person is required to report under §372.30. Persons potentially subject to this exemption should carefully review the definitions of article and release in §372.3. If a release of a toxic chemical occurs as a result of the processing or use of an item at the facility, that item does not meet the definition of article.

(c) Uses. If a toxic chemical is used at a covered facility for a purpose described in this paragraph (c), a person is not required to consider the quantity of the toxic chemical used for such purpose when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29 or determining the amount of releases to be reported under §372.30. However, this exemption only applies to the quantity of the toxic chemical used for the purpose described in this paragraph (c). If the toxic chemical is also manufactured (including imported), processed, or otherwise used at the covered facility other than as described in this paragraph (c), in excess of an applicable threshold quantity set forth in §372.25, §372.27, or §372.28, the person is required to report under §372.30.

(1) Use as a structural component of the facility.

(2) Use of products for routine janitorial or facility grounds maintenance. Examples include use of janitorial cleaning supplies, fertilizers, and pesticides similar in type or concentration to consumer products.

(3) Personal use by employees or other persons at the facility of foods, drugs, cosmetics, or other personal items containing toxic chemicals, including supplies of such products within the facility such as in a facility operated cafeteria, store, or infirmary.

(4) Use of products containing toxic chemicals for the purpose of maintaining motor vehicles operated by the facility.

(5) Use of toxic chemicals present in process water and non-contact cooling water as drawn from the environment or from municipal sources, or toxic chemicals present in air used either as compressed air or as part of combustion.

(d) Activities in laboratories. If a toxic chemical is manufactured, processed, or used in a laboratory at a covered facility under the supervision of a technically qualified individual as defined in §720.3(ee) of this title, a person is not required to consider the quantity so manufactured, processed, or used when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29 or determining the amount of release to be reported under §372.30. This exemption does not apply in the following cases:

(1) Specialty chemical production.

(2) Manufacture, processing, or use of toxic chemicals in pilot plant scale operations.

(3) Activities conducted outside the laboratory.

(e) Certain owners of leased property. The owner of a covered facility is not subject to reporting under §372.30 if such owner's only interest in the facility is ownership of the real estate upon which the facility is operated. This exemption applies to owners of facilities such as industrial parks, all or part of which are leased to persons who operate establishments in any SIC code or NAICS code in §372.23 that is subject to the requirements of this part, where the owner has no other business interest in the operation of the covered facility.

(f) Reporting by certain operators of establishments on leased property such as industrial parks. If two or more persons, who do not have any common corporate or business interest (including common ownership or control), operate separate establishments within a single facility, each such person shall treat the establishments it operates as a facility for purposes of this part. The determinations in §§372.22 and 372.25 shall be made for those establishments. If any such operator determines that its establishment is a covered facility under §372.22 and that a toxic chemical has been manufactured (including imported), processed, or otherwise used at the establishment in excess of an applicable threshold in §372.25, §372.27, §372.28, or §372.29 for a calendar year, the operator shall submit a report in accordance with §372.30 for the establishment. For purposes of this paragraph (f), a common corporate or business interest includes ownership, partnership, joint ventures, ownership of a controlling interest in one person by the other, or ownership of a controlling interest in both persons by a third person.

(g) Coal extraction activities. If a toxic chemical is manufactured, processed, or otherwise used in extraction by facilities in SIC code 12, or in NAICS codes 212111, 212112 or 212113, a person is not required to consider the quantity of the toxic chemical so manufactured, processed, or otherwise used when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29, or determining the amounts to be reported under §372.30.

(h) Metal mining overburden. If a toxic chemical that is a constituent of overburden is processed or otherwise used by facilities in SIC code 10, or in NAICS codes 212221, 212222, 212230 or 212299, a person is not required to consider the quantity of the toxic chemical so processed, or otherwise used when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29, or determining the amounts to be reported under §372.30.

[53 FR 4525, Feb. 16, 1988, as amended at 62 FR 23892, May 1, 1997; 64 FR 58751, Oct. 29, 1999; 71 FR 32477, June 6, 2006; 82 FR 60911, Dec. 26, 2017; 85 FR 37357, June 22, 2020; 85 FR 42314, July 14, 2020]

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