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_________________________________________________________________________________
Document Type: Incoming
To: Maria Doa
From: Kristina Woods
Date: 03/26/1999
Subject: Request For Interpretation on Reporting Facilities
Keyword(s): Facility, Facility-Facility Reporting, Reporting Criteria, Reporting Responsibility
_________________________________________________________________________________
Body:
ASHLAND INC. * P.O. BOX 2219 * COLUMBUS, OHIO 43216 * PHONE (614) 790-3333
Law Department
Kristina M. Woods
Sr. Environmental Attorney
Phone: (614) 790-3678
Fax: (614) 7904268
March 26, 1999
VIA UPS EXPRESS
Dr. Maria J. Doa, Branch Chief
Toxic Release Inventory Branch
Room 501D, Mail Code 7408
U.S. Environmental Protection Agency
401 M Street, SW
Washington, D.C. 20460
Re: Revision: REQUEST FOR INTERPRETATION
Ashland Distribution Company, division of Ashland Inc.:
SARA Title III Reporting and Environmental Services Business
Unit at a Shared Facility
Dear Dr. Doa:
You will find enclosed a revision of Ashland Inc.'s letter dated March 24, 1999, which was sent to you via Federal Express. We have discovered that a substantial and important block of text was inadvertently deleted from the first version you received due to a word processing glich. The enclosed letter contains the complete text. That letter had one of our Environmental Services Brochures enclosed with it. Ashland requests that you discard the first letter and use the enclosed revised version. Ashland apologizes for any inconvenience or confusion this may have caused. Thank you very much for your attention to this matter.
Sincerely
Kristina M. Woods
Sr. Environmental Attorney
Enclosure
cc:
Patricia Roberts, Esq.
Acting Associate General Counsel
USEPA --Pesticides and Toxic Substances Law Office
401 M Street, SW
Mail Code 2333, West Tower
Washington, DC 20460
March 30, 1999
VIA FEDERAL EXPRESS
Dr. Maria J. Doa, Branch Chief
Toxic Release Inventory Branch
Room 501D, Mail Code 7408
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Re: REQUEST FOR INTERPRETATION
Ashland Distribution Company, division of Ashland Inc.: SARA Title In
Reporting and Environmental Services Business Unit at a Shared Facility
Dear Dr. Doa:
Ashland Distribution Company, division of Ashland Inc. ("Ashland"), respectfully requests your office to confirm our interpretation of the provisions of 40 C.F.R. 372.30 relating to filing of SARA Section 313 reports. Ashland believes that regulations clearly do not apply to a certain segment of its business described below in more detail. However, we have not received clear guidance in our informal conversations on the subject with EPA regional and headquarters personnel, and wish to ensure that EPA will agree with our interpretation. We would like to receive confirmation of our interpretation prior to our preparation of our filings pursuant to SARA 313.
The question of applicability has arisen because certain of Ashland's facilities are required to report emissions of SARA chemicals for the first time this year due to EPA's addition of chemical wholesalers identified by SIC code 5169 to those facilities subject to reporting (May 1, 1997 final rule). These newly-covered facilities engage in repackaging and distribution of virgin chemicals and plastics for sale to a broad spectrum of industrial customers. The repackaging operations meet the definition of "processing" under the regulations. To the extent these operations generate SARA 313 reportable waste that must be disposed of off-site, it will be included in the SARA 313 reports.
The business we believe is not subject to SARA 313 reporting is Ashland's Environmental Services (ES) business unit. This business unit operates RCRA-permitted storage facilities as collection points for customer-generated hazardous and non-hazardous wastes. We emphasize that these wastes are generated-off-site by other entities and facilities and are in no way related to or associated with the previously described wholesale chemical distribution operations. The permits authorize storage only; no treatment or disposal of waste occurs at these sites. Off-site generated wastes are received in closed containers (typically 55-gallon drums, but also other types of containers). These containers are brought on site by truck and unloaded into a section of a warehouse or protected outdoor storage area. The closed containers are loaded back onto another truck at a later time for shipment to an off-site treatment, recycling, or disposal facility. While on site, these containers are not opened except if necessary to obtain a sample for analysis. ES does not manufacture, process, or otherwise use SARA reportable chemicals as these terms are defined in the SARA 313 reporting regulations and supporting documents. We have attached a brochure describing our ES business to aid EPA's further understanding.
The specific and narrow question raised by this set of facts is: "Must Ashland include the SARA-listed chemicals contained in the wastes managed by ES in the SARA 313 reports for the chemical distribution operations as an off-site transfer when the two businesses share a physical facility even though the ES operation would otherwise not be subject to the reporting requirements?" For the reasons set forth below, we believe that the answer to this question is "no."
First, we point out that where our ES RCRA-permitted facilities are "stand-alone," i.e., they are the only business unit" operating at a given address, the facility and the business are unquestionably not covered by the SARA 313 reporting requirements. In fact, EPA explicitly stated its intent not to subject facilities that only store and transfer containerized waste to SARA 313 reporting requirements in both the preamble to the May 1, 1997 rule and the SARA 313 guidance it has provided to chemical distributors. These facilities do not manufacture, process' or otherwise use1" Relabeling or redistributing of the Section 313 chemical where no repackaging of the Section 313 chemical occurs does not constitute processing of the Section 313 chemical." (Emergency Planning and Community Right-to-Know Act Section 313-Guidance for Chemical Distribution Facilities (Version 1.0), page 2-6.
2"For purposes of the otherwise use definition, EPA interprets waste management activities to include recycling, combustion for energy recovery, treatment for destruction, waste stabilization and release, including disposal. Waste management does not include the storage, container transfer, or tank transfer of a Section 313 chemical if no recycling, combustion for energy, treatment for destruction, waste stabilization, or release of the chemical occurs at the facility." Id., page 2-7; See also 62 Federal Register 23850, May 1, 1997. SARA 313 chemicals as these terms are defined in the regulations. At some of our sites, the ES RCRA-permitted storage facility/business is located at the same address as our chemical distribution operations that are now subject to the reporting requirement. These ES operations should be treated in exactly the same way as the "'stand-alone" ES operations for purposes of determining the applicability of SARA 313 reporting requirements, i.e., they should not be subject to these requirements. The coincidental fact that they occupy the same facility as a covered chemical distribution business should be irrelevant.
The explicit language of the regulations makes it clear that a business which is not covered by the SARA 313 reporting regulations, but which operates on a site also housing a covered business, may be exempt from the reporting obligations.
40 CFR 372.30(c) reads as follows (emphasis added):
"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.
At the approximately eight chemical distribution facilities where ES also operates, the facilities are definitely "covered facilities". However, the ES business is one establishment," and the distribution business is another "establishment' on the same covered site. Furthermore, according to the last sentence in the above citation, ES would not have to report at all if they do not manufacture, process, otherwise use, or release any SARA chemical which is reported by the chemical distribution business. As discussed above, since ES does not manufacture, process, or otherwise use SARA chemicals, the only way that they would have to report is if they "release" a SARA reportable chemical that is reported by the distribution establishment.
40 CFR 372.3 defines release as follows:
"Release means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles) of any toxic chemical, "
ES does not "release" SARA chemicals into the environment by any of the above-defined ways. ES merely transports the chemicals off-site. "Transfer to off-site locations" is not included in EPA's definition of "release" above.
The Toxic Chemical Release regulations do not specifically define the term "transfer", but other portions of the regulation make it clear that a transfer is different from a release. In Subpart E of 40 CFR 372, EPA describes the information which must be reported on the Form R. 40 CFR 372.85(b)(15) describes release information as follows:
(15) "Information on releases of the chemical to the environment as follows:
(I) An estimate of total releases in pounds per year ... from the facility plus an indication of the basis of estimate for the following.-
(A) Fugitive or non-point air emissions.
(B) Stack or point air emissions.
(C) Discharges to receiving streams or water bodies including an indication of the percent of releases due to storm water.
(D) Underground injection on site.
(E) Releases to land on site. "
In the next paragraph, EPA defines transfer information as follows:
(16) "Information on transfers of the chemical in wastes to off-site locations as follows:
(i) For transfers to Publicly Owned Treatment Works (POTW)...)(h) For transfers to other off-site locations..
For purposes of reporting on the Form R, then, EPA makes a clear distinction between "releases" and "transfers" in the above two paragraphs. This is also reflected in the guidance documents and instructions for completing the forms. EPA always refers to releases and transfers as two different things. EPA's Emergency Planning and Community Right to Know Act Section Guidance for Chemical Distribution Facilities lists under what must be reported:
"Quantities of the chemical released during the year to environmental media, including both accidental spills and routine emissions; "
and under a separate bullet point:
"Off-site locations to which you shipped wastes containing the chemical and the quantities of the chemical sent to those locations; "
Since EPA does not include -,ff-site transfers in its definition of a "release", the ES "establishment" at these "covered facilities" (chemical wholesale distribution) does not manufacture, process, otherwise use, or release chemicals which are reportable by the chemical distribution "establishment", and therefore, does not have to submit a Form R for its transfers of customer generated wastes. Pursuant to the last sentence in 40 CFR 372.30(c), ES is not engaged in any of the activities that would trigger the reporting obligation.
As we have demonstrated, the ES facilities are not subject to SARA 3 13 reporting regardless of where they are located. We also point out that a requirement that they report would entail substantial efforts that yield no appreciable environmental or public information benefit. Due to the differences between RCRA reporting and SARA 313 reporting, and due to the inherent nature of waste streams, information generated for a SARA 313 report would be extrapolated and not capable of exactitude. The ES business is already highly regulated and subject to substantial recordkeeping via its Part B permits and the RCRA regulations themselves. The ES facilities are required to file annual waste reports detailing the amounts and types of wastes that pass through the permitted storage areas, and must keep manifests and logs on file. These publicly available documents already provide an accurate and thorough picture of the nature and types of materials moving through the ES portion of the facility.
Ashland thanks EPA for its anticipated careful and thorough consideration of our position regarding the inapplicability of the SARA 313 reporting requirements to the ES businesses which operate at the same facilities as our chemical distribution business. We are looking forward to receiving your concurrence with this interpretation. Although we are sensitive to the many demands on the agency's time, we would be grateful if EPA would expedite its review of this matter and provide us with assurances as soon as possible. As you know, the deadline for filing the 1998 SARA 313 reports is July 1, 1999. We will very shortly be engaged in compiling the information necessary for preparation of these reports and therefore need to hear from EPA in the near future.
Because this matter involves a legal interpretation, I have taken the liberty of sending a copy of this letter to Patricia Roberts in EPA's Office of General Counsel in hopes that the matter will be further expedited.
We will be happy to provide any further information EPA may need, and would also be happy to meet with agency staff if necessary. We look forward to hearing from you or someone on your staff by April 30, 1999 if at all possible. Any inquiries or discussions can be initiated with me at the above number. Thank you.
Very truly yours,
Kristina M. Woods
cc:
Patricia Roberts, Esq.
Acting Associate General Counsel
USEPA --Pesticides and Toxic Substances Law Office
401 M Street, SW
Mail Code 2333, West Tower
Washington, DC 20460
Link to Response: 
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