Is customized paint exempted under the consumer product exemption?

A store sells paint in five-gallon cans to the general public.  Customers may purchase the paint as received from the manufacturer, or they may request a custom shade of paint.  To attain the customer's desired shade, store employees will mix two or more base colors.  This process involves opening the cans, mixing the colors together, and pouring the custom-made shade into a five-gallon can.  Sections 311 and 312 require facility owners and operators to report all hazardous chemicals as defined by 29 CFR section 1910.1200(c) that exceed the applicable thresholds found in 40 CFR §370.10.  Section 311(e)(3) of EPCRA excludes from the definition of hazardous chemical 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.

For reporting under Sections 311 and 312, will this paint qualify for the consumer product exemption found in Section 311(e)(3), or must the store owner or operator report on the custom-mixed paint since it is processed to achieve the final form purchased by the consumer?

 The paint is exempt from the definition of hazardous chemical under the consumer product exemption in 40 CFR section 370.66 regardless of whether it is mixed on the premises or purchased by the consumer in the same form the store received it.  Any substance that is found in the same form and concentration as a product packaged for general distribution qualifies for this exemption (October 15, 1987, 52 FR 38344).

Since both the manufacturer's premixed paint and the store's custom-made shades are in the same form and concentration as products packaged for distribution by the general public (indeed, they are in such products), none of the chemicals found in either type of paint are reportable under Sections 311 and 312.