[Code of Federal Regulations] [Title 40, Volume 27] [Revised as of July 1, 2008] From the U.S. Government Printing Office via GPO Access [CITE: 40CFR372.38] [Page 479-481] TITLE 40--PROTECTION OF ENVIRONMENT CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED) PART 372_TOXIC CHEMICAL RELEASE REPORTING: COMMUNITY RIGHT-TO-KNOW-- Table of Contents Subpart B_Reporting Requirements Sec. 372.38 Exemptions. (a) De minimis concentrations of a toxic chemical in a mixture. 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 as defined in 29 CFR 1910.1200(d)(4), 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 Sec. 372.25 or determining the amount of release to be reported under Sec. 372.30. This exemption 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 Sec. 372.25, the person is required to report under Sec. 372.30. This exemption does not apply to toxic chemicals listed in Sec. 372.28, except for purposes of Sec. 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 [[Page 480]] present in such article when determining whether an applicable threshold has been met under Sec. 372.25, Sec. 372.27, or Sec. 372.28 or determining the amount of release to be reported under Sec. 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 Sec. 372.25, Sec. 372.27, or Sec. 372.28, the person is required to report under Sec. 372.30. Persons potentially subject to this exemption should carefully review the definitions of article and release in Sec. 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 Sec. 372.25, Sec. 372.27, or Sec. 372.28 or determining the amount of releases to be reported under Sec. 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 Sec. 372.25, Sec. 372.27, or Sec. 372.28, the person is required to report under Sec. 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 Sec. 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 Sec. 372.25, Sec. 372.27, or Sec. 372.28 or determining the amount of release to be reported under Sec. 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 Sec. 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 Sec. 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 Sec. Sec. 372.22 and 372.25 shall [[Page 481]] be made for those establishments. If any such operator determines that its establishment is a covered facility under Sec. 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 Sec. 372.25, Sec. 372.27, or Sec. 372.28 for a calendar year, the operator shall submit a report in accordance with Sec. 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 Sec. 372.25, Sec. 372.27, or Sec. 372.28, or determining the amounts to be reported under Sec. 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, 212231, 212234 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 Sec. 372.25, Sec. 372.27, or Sec. 372.28, or determining the amounts to be reported under Sec. 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]