A facility subject to the reporting requirements of EPCRA 313 manufactures shoes that contain two toxic chemicals when they are distributed in commerce. Toxic chemical A exists as an impurity in a raw material that becomes part of the shoes. The toxic chemical remains in the product, but serves no specific function within it. Toxic chemical B is a solvent in the adhesive that is used to attach the soles of the shoes. Most of chemical B evaporates during the manufacturing process, but small amounts of this chemical remain in the shoes when they are distributed in commerce. How can a facility determine whether to apply the processing or otherwise use threshold in these situations?
If a toxic chemical component of a raw material is incorporated into a product for distribution in commerce, regardless of whether it serves a function within that product, the facility should apply the processing threshold. However, if a toxic chemical is otherwise used on site and some portion of the chemical is incorporated into the final product, the entire amount is considered toward the facility's otherwise use threshold. None of this amount is considered towards the processing threshold.
In this particular scenario, because toxic chemical A is an impurity that is present in a raw material and that is incorporated into a product for distribution in commerce, the facility has processed that toxic chemical. The facility did not specifically add the toxic chemical to the product, but the toxic chemical was not removed from the raw material either. Therefore, unless toxic chemical A is present below its de minimis concentration, the entire quantity of the chemical would be subject to the 25,000 pound processing threshold.
Toxic chemical B, however, is involved in a specific non-incorporative activity (as a volatile component of the adhesive). The entire quantity of toxic chemical B used in the adhesive would therefore be subject to the 10,000 pound otherwise use threshold, even if a portion of that chemical remains in the shoes that are distributed in commerce. Additional guidance on activity determinations can be found in the Revised 1998 EPCRA Section 313 Questions and Answers Document and the Toxic Release Inventory Reporting Forms and Instructions.