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One of the most confusing exemptions under EPCRA is that for “routine agricultural use” (Section 311(e)(5)) under Sections 311 and 312, which cover Safety Data Sheet (SDS) reporting and Tier I/Tier II Inventory reporting, respectively. According to the Environmental Protection Agency (EPA), the exemption is “designed to eliminate the reporting of fertilizers, pesticides, and other chemical substances when applied, administered, or otherwise used as part of routine agricultural activities.” However, EPA’s admittedly broad use of the term “agricultural use” as “encompassing a wide range of growing operations, farms, nurseries and other horticultural operations,” puts the onus on the regulated community to figure out if the exemption applies to them or not.
One key element to consider is whether or not the hazardous chemical is used or stored at the farm facility. For example, in the case of a farm that stores fuel for its own use on-site but uses a harvesting service to transport crops to market, the harvesting service’s fuel would not be exempt because harvesting is not considered part of the growing process.
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A second example is that of a turf nursery that uses hazardous chemicals in its routine farming operations versus a golf course that grows turf for its own use. The turf nursery business is exempt because it is an agricultural operation, while the EPA considers the golf course nonexempt because its primary business is that of golf, not turf growing.
Transportation is another area where exemptions can be easily misunderstood. Although EPCRA Section 327 exempts hazardous materials in transportation or being stored incidental to transport from reporting requirements under EPCRA 311/312, they must be under active shipping orders to be considered exempt. For example, a rail tank car carrying hazardous chemicals awaiting transport under active shipping orders is considered exempt, while a similar tank car stored at a rail yard but not under active shipping orders is not exempt from Section 311/312 reporting requirements.
Also regarding transportation, even hazardous chemical shipments that are exempt under Section 327 are not exempt from EPCRA Section 304 and Environmental Response, Compensation, and Liability Act (CERCLA) Section 103, which cover release notification for CERCLA and extremely hazardous substances (EHSs).
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Also subject to interpretation are requirements for manufacturers under EPCRA 311/312. Regarding manufacturers of household products, Section 311(e) exempts “any substance to the extent it is used for personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public.” While the word “concentration” is easy enough to understand, the word “form” can be misleading because, according to the EPA, it refers to the packaging, not to the actual physical state of the substance (i.e., solid, liquid, gas). As a result, the manufacturer is only allowed the exemption when the product is in the final consumer form and in any case is not exempt from reporting on raw or processing materials.
Another twist on the manufacturing exemption is that of a product that is in a solid state but that may undergo changes during ongoing manufacturing processes. For example, sheet metal, while stored, is excluded from the definition of a hazardous chemical under Section 311(e)(2) because it does not present potential for exposure. However, if the sheet metal undergoes cutting, welding, brazing, or other activities that alter its form and create a potential for exposure (such as fumes or dust at or above thresholds), the exemption no longer applies, and the manufacturer is subject to reporting requirements.