Toxics Release Inventory (TRI) GuideME (2023)

168. Are on-site warehouses subject to the threshold determinations of section 313?

Warehouse operations can require threshold determinations. Reporting thresholds are based on “manufacture,” “process,” or “otherwise use” of an EPCRA section 313 chemical at the facility. Repackaging (e.g., pouring the contents of a 55 gallon drum into smaller containers) for distribution into commerce (e.g., shipped off-site to another federal facility within the same agency) at a warehouse is considered processing and the repackaged quantities of the EPCRA section 313 chemicals must be counted in the facility’s “process” threshold determinations. Simply receiving, storing, relabeling, distributing, or reshipping pre-packaged quantities from a shipment of packages is not “manufacture,” “process,” or “otherwise use.”

217. Does it matter for purposes of determining the processing threshold if amounts that are received in smaller containers are removed from the smaller containers and repackaged into a larger container prior to their distribution in commerce?

No. The act of transferring any amount from one unit container to another prior to distributing the material in commerce constitutes the act of processing. The size of the container does not matter.

218. Does breaking the integrity of the package that contains the toxic chemical constitute repackaging?

No. The listed toxic chemical must be transferred from one package to another in order for the listed toxic chemical to be considered repackaged.

219. A covered facility receives shipments of an EPCRA section 313 listed toxic chemical in rail cars. The listed toxic chemical is transferred from the rail cars into large tank trucks for distribution to customers. The quantity of the listed toxic chemical held in the tank trucks is approximately equivalent to the amount held in the rail cars. Would the transfer of the listed toxic chemical from the rail cars to the tank trucks be considered repackaging and therefore included in processing threshold determinations?

Yes. All activities involving the preparation of a listed toxic chemical, after its manufacture, for distribution in commerce are to be included in the processing threshold determination for that chemical. The Agency defines processing to include ‘...the preparation of a chemical for distribution in commerce in a desirable form, state, and/or quantity (i.e., repackaging)...’ (53 FR 4506; February 16, 1988). The act of removing a listed toxic chemical from one container and placing it in another is considered repackaging, regardless of the size of the containers involved. As such, the facility must include any amounts of a listed toxic chemical transferred from the rail cars to the tank trucks in its processing threshold for that chemical.

220. Lab packs and hazardous waste in general tend to move progressively from smaller containers to larger containers. Is this repackaging activity covered by the processing threshold?

Repackaging toxic chemicals in hazardous waste may be covered by the processing threshold. For an activity to be considered processing under EPCRA section 313, the toxic chemical must be prepared for distribution in commerce. If the listed toxic chemical is not removed or taken from the smallest unit, but is simply placed in a larger container while the contents remain in the smaller container, then the listed toxic chemical is not considered to be repackaged. If the listed toxic chemical is taken out of the smallest unit container and is transferred to another container, it is considered repackaged. However, if, after the toxic chemical has been repackaged, it is not distributed in commerce (e.g., instead of being distributed in commerce, it is sent off-site for disposal or treatment) the activity is not a covered processing activity under EPCRA section 313. It would only be considered processed if the toxic chemicals in the lab packs, after being repackaged, are sent off-site for recycling or for further use or reuse.

221. 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 calculations in determining whether the processing threshold is exceeded for that toxic chemical.

222. A multi-establishment facility, with a primary NAICS code 324 operates a petroleum bulk plant, with NAICS code 424710. The bulk plant receives gasoline from tanker trucks and stores the gasoline in storage tanks on-site. The facility also loads other tanker trucks with gasoline that distribute the gasoline to service stations. Are the listed toxic chemicals in the gasoline processed, otherwise used, or neither?

Since the facility repackages the gasoline by transferring it between trucks and bulk storage containers for further distribution into commerce, the facility is processing the listed toxic chemicals in the gasoline.

224. A petroleum bulk plant receives petroleum via pipeline. The petroleum goes from the pipe into a storage tank and exits the facility again through the pipeline. It is then sent to another petroleum bulk plant within the same company but located on non-contiguous and non-adjacent property, which distributes the petroleum into commerce (i.e., their customers). Did the first plant repackage and therefore process the petroleum?

Yes. The petroleum received via pipeline, stored and subsequently transferred to another facility has been repackaged and the listed toxic chemicals have been distributed in commerce. Amounts of listed toxic chemicals contained in the amount repackaged must be considered toward the processing threshold.

226. A covered facility receives a chemical in bulk, repackages the chemical into reusable containers that are sent to customers, who then return the containers to be refilled. How does the facility consider residual amounts of the product returned to the facility in used containers, which are then subsequently refilled and redistributed in commerce?

When the facility originally places the toxic chemical into the reusable containers, the facility is processing toxic chemicals. Because the residual amounts that are returned to the facility in the reusable containers are not transferred to other containers or packages, the residual amounts have not been repackaged. Therefore, the listed chemicals in the residual amounts do not have to be considered toward the facility’s processing threshold again.

227. 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.

228. After an EPCRA section 313 toxic chemical is spent, a covered facility removes waste containing the toxic chemical from the production process and places it into drums. The facility sends these drums containing 30,000 pounds of the toxic chemical off-site to be recycled. The facility exceeds the 25,000-pound processing threshold for this toxic chemical and is required to file a Form R for the listed toxic chemical. What is the appropriate box to check in Part I, Section 3.2 of the Form R?

All activities involving the preparation of a listed toxic chemical, after its manufacture, for distribution in commerce are to be included in the processing threshold determination for that chemical. The act of repackaging an EPCRA section 313 toxic chemical and then transferring it off-site for recycling is considered processing. As such, facilities sending toxic chemicals in wastes off-site for recycling should check ‘repackaging’ in Part I, Section 3.2 of the Form R.

230. A covered facility receives a shipment of five-gallon cans of paint containing a listed toxic chemical. The facility breaks up the shipment into separate five-gallon cans and packages each can in a box with a paint brush for sale. Is the listed toxic chemical repackaged and thus processed for purposes of EPCRA section 313?

No. ‘Repackaging’ refers to the act of removing a toxic chemical from one container and placing that toxic chemical into another container. Simply repackaging one container (that contains a toxic chemical) into another container does not constitute processing of that listed toxic chemical under EPCRA section 313. The nesting of containers is not repackaging for EPCRA section 313 purposes.

231. A facility receives a waste from off-site, samples the waste, and then sends the remaining waste off-site to be recycled without changing the packaging. Has the facility processed the listed toxic chemical in the waste?

No. Provided that the listed toxic chemical transferred to the off-site facility remains in the packaging in which it was received, it has not been repackaged. The facility has simply opened the original package for sampling and transferred the listed toxic chemical to another facility. Because no repackaging has occurred, no processing has taken place.

277. A car manufacturer has a central 25,000 gallon storage tank on-site. A pipe leads from the central storage tank to a fill station where the cars are filled with gas before being sent off-site to be sold. Is the processing of the toxic chemical components of the gasoline considered ‘repackaging only’ or ‘as an article component’ in Part II, Section 3.2(e) of the Form R?

The toxic chemicals in the gasoline should be reported as processed as an ‘article component’ because they are incorporated into the car which is an article (40 CFR Section 372.3).

846. A covered facility repackages and distributes some toxic chemicals manufactured by other companies. Is the facility responsible only for passing on the manufacturer's information to its customers or is it required to provide supplier notification?

The repackaging facility must provide supplier notification to its customers only if it is in a NAICS code corresponding to SIC codes 20 through 39. If the only information the facility knows is from the SDS, all it can do is provide this same information to its customers. If the facility knows the product contents or concentrations are different from what appears on the supplier's notice, the facility must provide the more accurate information to its customers. EPA suggests, but does not require, that the repackager inform the supplier of the inaccuracy in their SDS. If the facility is not in a NAICS code corresponding to SIC codes 20 through 39, but instead, is a covered facility in a newly added industry beginning in 1998, it would not be required to initiate supplier notification. It should, however, pass along such notices prepared by their supplier to any facility in a covered NAICS code who purchases a mixture or trade name product containing a toxic chemical.

944. A DOD facility has a petroleum bulk terminal for storing fuel that contains EPCRA section 313 chemicals. The fuel is periodically transferred from the petroleum bulk terminal to other parts of the facility. Although this transfer is “repackaging,” the facility does not distribute the fuel in commerce. Must the facility consider the amount of EPCRA section 313 chemicals in the fuel towards its processing threshold? What about the otherwise use threshold?

Quantities of EPCRA section 313 chemicals that are “repackaged” but not distributed in commerce do not meet the definition of “processed.” However, if the fuel is used on-site in a non-exempt activity, the EPCRA section 313 chemicals in the fuel must be considered in the facility's “otherwise use” threshold determinations. If the facility exceeds the “otherwise use” threshold for any EPCRA section 313 chemicals in the fuel, then the facility must report any releases or other waste management activities for the chemicals, such as any releases that occur during the “repackaging” step.