EPCRA Hazardous Chemical Inventory Reporting – Agricultural Operations and Retail Fertilizer Exemptions
The following set of questions and answers are designed to help you understand if your facility is required to submit hazardous chemical inventory reports for your substances which are used in routine agricultural operations or are fertilizers held for sale by a retailer to the ultimate customer under sections 311 and 312 of the Emergency Planning and Community Right-to-Know Act and provides guidance on how to comply with the requirements [40 CFR part 370; 42 U.S.C. 11021 and 11022 (pdf)(187 KB)].
Note that under EPCRA, the term “state” includes the 50 States of the United States, the District of Columbia, the five inhabited territories of the United States, and any other territory or possession over which the United States has jurisdiction. Federally recognized Tribes are the implementing authority for EPCRA on all Indian lands. Tribal Emergency Response Commissions are a form of State Emergency Response Commission, and any Tribal Emergency Planning Committees are a form of Local Emergency Planning Committee.
On this page:
- What facilities are subject to EPCRA hazardous chemical inventory reporting?
- Agricultural Operations Exemption
- Retail Fertilizer Exemption
- What is the retail fertilizer exemption?
- Are retailers that mix or blend fertilizers eligible for the Retail Fertilizer Exemption?
- Are retailers that sell to other suppliers eligible for the Retail Fertilizer Exemption?
- Are retailers required to report other agricultural chemicals under EPCRA Sections 311 and 312, Hazardous Chemical Inventory Reporting?
- Are retailers required to report fertilizers that are sold for both agricultural and non-agricultural purposes?
- Can retailers report the fertilizers that are eligible for the Retail Fertilizer Exemption?
- Does the Retail Fertilizer Exemption also apply to other EPCRA reporting requirements?
- What are some examples of the applicability of the Retail Fertilizer Exemption?
What facilities are subject to EPCRA hazardous chemical inventory reporting?
The EPCRA sections 311 and 312 hazardous chemical inventory reporting requirements [40 CFR part 370] apply to facilities that are required to prepare or have available a safety data sheet under the Occupational Safety and Health Administration’s Hazard Communication Standard [29 CFR section 1910.1200], if they have hazardous chemicals present above their EPCRA reporting thresholds. The EPCRA reporting thresholds are codified at 40 CFR 370.10.
The OSHA HazCom Standard requires chemical manufacturers and importers to obtain or develop an SDS for each hazardous chemical that they produce or import. It also requires that employers have an SDS available for each hazardous chemical that they use [29 CFR section 1910.1200(g)]. The EPCRA regulations define hazardous chemical by citing OSHA's definition of “hazardous chemical” and providing the list of exceptions to the OSHA definition for the EPCRA sections 311-312 hazardous chemical inventory reporting requirements in 40 CFR part 370.
Pertinent to agricultural operations, EPCRA statue section 311(e)(5) and the EPCRA hazardous chemical inventory reporting regulation provide an exemption for any substance to the extent it is used in routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer [40 CFR section 370.13(c)(3)]. The questions below should help you understand the exemptions for:
The exemptions for the EPCRA sections 311 and 312 hazardous chemical inventory reporting requirements do not extend to the reporting requirements for other sections of EPCRA. Your facility may still be required to report under:
- EPCRA sections 301-303 Emergency Planning Provisions [40 CFR part 355].
- EPCRA section 304 Emergency Release Notifications [40 CFR part 355, Subpart C].
- EPCRA section 313 Toxics Release Inventory [40 CFR part 372].
Agricultural Operations Exemption
What is the purpose of the Agricultural Operations Exemption?
The Agricultural Operations Exemption exempts fertilizers, pesticides, and other chemical substances when applied, administered, or otherwise used as part of routine agricultural activities at growing facilities from the EPCRA sections 311 and 312 hazardous chemical inventory reporting [40 CFR part 370]. The general public is familiar with the application of agricultural chemicals at growing facilities so there is no community need for reporting the presence of the hazardous chemicals at these facilities. [52 FR 38349; October 15, 1987 (pdf)(18.1 MB)]
What does the term agricultural include?
The term "agricultural” is a broad term encompassing a wide range of growing operations including aquaculture, farms, livestock production, nurseries, horticulture operations, and vegetation production [52 FR 38349; October 15, 1987 (pdf)(18.1 MB)].
What does the Agricultural Operations Exemption not include?
The exemption does not include agricultural activities at non-agriculture facilities, including farm supply cooperatives and other retail facilities supplying agricultural chemicals. [52 FR 38349; October 15, 1987 (pdf)(18.1 MB)]
What are some examples of the applicability of the Agricultural Operations Exemption?
Growing of Turf Grass
The growing of turf by a nursery is eligible for the Agricultural Operations Exemption from the hazardous chemical inventory reporting under EPCRA sections 311 and 312 [40 CFR part 370]. The storage and use of hazardous chemicals at the nursery facility are not required to be reported under these provisions.
However, the growing of turf at non-agricultural facilities are not eligible for this exemption. Examples of non-agricultural operations that may grow turf include golf courses and sports complexes.
Application of Herbicides and Pesticides at Animal Facilities
The storage and application of herbicides and pesticides to improve the quality of the area for the cows at a dairy farm is eligible for the Agricultural Operations Exemption from the hazardous chemical inventory reporting under EPCRA sections 311 and 312 [40 CFR part 370].
However, the storage and application of herbicides and pesticides at non-agricultural animal care facilities are not eligible for this exemption and is required to provide the hazardous chemical inventory reports. Non-agricultural animal care facilities include animal refuges, shelters, and zoos.
Pesticide Application Service Company
Example: A pesticide application service company has diesel fuel and pesticides at its facility. This company transports the pesticides from its facility to citrus orchards and applies them to the citrus trees on behalf of the farmer. This is the only use of pesticides that this service company performs, and the diesel fuel is only used for this activity. In this scenario, the pesticide application service company’s facility is a non‑agricultural facility, and the citrus orchard is an agricultural facility.
Therefore, the storage of the diesel fuel and pesticides at the pesticide application service company’s facility are not eligible for the Agricultural Operations Exemption from the hazardous chemical inventory reporting of EPCRA sections 311 and 312 [40 CFR part 370].
However, the presence and use of the diesel fuel and pesticides at the orchard/farm are eligible for the exemption.
Fertilizer Application Service Company
Example: A fertilizer application service company has diesel fuel and fertilizer at its facility. This company transports the fertilizer from its facility to commercial crop fields and applies them to the crops on behalf of the farmer. This is the only use of fertilizer that this service company performs, and the diesel fuel is only used for this activity. In this scenario, the fertilizer application service company’s facility is a non-agricultural facility that holds fertilizer for sale to the ultimate customer, and the commercial crop fields are agricultural facilities.
The fertilizer service company’s facility is not eligible for Agricultural Operations Exemption, therefore the diesel fuel should be reported in the hazardous chemical inventory reports for EPCRA sections 311 and 312 [40 CFR part 370]. However, the fertilizer stored at this facility for sale to the ultimate customer is eligible for the Retail Fertilizer Exemption. For more information refer to the Retail Fertilizer Exemption section.
The presence and use of the diesel fuel and pesticides at the orchard/farm are eligible for the Agricultural Operations Exemption and do not need to be included in the hazardous chemical inventory reports.
Retail Fertilizer Exemption
What is the retail fertilizer exemption?
Under specific circumstances, retailers are exempt from the hazardous chemical inventory reporting requirements of EPCRA sections 311 and 312. To be eligible for the exemption, the facility must be a retail facility that is holding fertilizers for sale to the ultimate customer (e.g., the farmer with the intent to apply the fertilizer). This is not a facility level exemption; it is only applicable to the specific quantities of chemicals that are held for use as fertilizers and are for sale to the ultimate customer (e.g., ammonia for sale to farmers for use as fertilizer). The exemption does not extend to the portions of the chemicals intended for other uses (e.g., ammonia for cooling) nor to any other chemicals at retail facilities.
The Retail Fertilizer Exemption does not apply to:
- Non-retail facilities.
- Sale of fertilizer for resale.
- Fertilizers that are mixed or blended.
- Other chemicals that are used or stored on site, such as pesticides or other agricultural or non-agricultural chemicals.
For more information on the Retail Fertilizer Exemption refer to the:
Are retailers that mix or blend fertilizers eligible for the Retail Fertilizer Exemption?
No. Retailers that mix or blend on site are not eligible for the Retail Fertilizer Exemption for the portions of the fertilizer that are intended to be mixed or blended. Fertilizers that are intended to be mixed or blended are chemicals that are held for the purpose of producing a different fertilizer; they are not being held for sale to the ultimate customer. Fertilizers held by retailers that are intended for mixing or blending should be reported if they are present on site at any one time above the applicable thresholds.
Retailers that mix or blend may also sell fertilizers directly to the ultimate customer without mixing or blending. The portions of fertilizer that are not intended to be mixed or blended are exempt from the EPCRA definition of “hazardous chemical” and are exempt from the hazardous chemical inventory reporting requirements of EPCRA sections 311 and 312 [40 CFR part 370].
Are retailers that sell to other suppliers eligible for the Retail Fertilizer Exemption?
No. Retailers that sell to other suppliers are not eligible for the Retail Fertilizer Exemption for any portion of fertilizer that is sold to other suppliers. The Retail Fertilizer Exemption is specifically for fertilizers held for sale by a retailer to the ultimate customer. Other suppliers are not the ultimate customer. Retailers that sell to other suppliers are required to report fertilizers and all other hazardous chemicals if present on site at any one time above the applicable thresholds. Retailers that sell to other suppliers may also sell fertilizers directly to the ultimate customer. The portions of fertilizer that are sold to the ultimate customer are exempt from the definition of “hazardous chemical” and are exempt from the hazardous chemical inventory reporting requirements of EPCRA sections 311 and 312.
Are retailers required to report other agricultural chemicals under EPCRA Sections 311 and 312, Hazardous Chemical Inventory Reporting?
Yes. The Retail Fertilizer Exemption is only for fertilizers held for sale to the ultimate customer. The exemption is not applicable for other agricultural or non-agricultural chemicals, such as pesticides, solvents, diesel fuels, etc. Retailers are required to report nonfertilizer hazardous chemicals if present on site at any one time above the applicable thresholds.
Are retailers required to report fertilizers that are sold for both agricultural and non-agricultural purposes?
Retailers that sell fertilizers for both agricultural and non-agricultural purposes (e.g., ammonia as a coolant) cannot use the Retail Fertilizer Exemption for the portions of the chemical that are intended to be sold for non-fertilizer purposes. The Retail Fertilizer Exemption is only for fertilizer held for sale by retailers to the ultimate customer. The portions of the fertilizer that are sold for non-fertilizer purposes are required to be reported if present on site at any one time above the applicable thresholds.
Can retailers report the fertilizers that are eligible for the Retail Fertilizer Exemption?
Yes. Retailers can report the total quantity of fertilizer they held, to include both the eligible (exempt) and the ineligible (non-exempt) portions. Retailers may find it easier to report the total quantity of the fertilizers that are present on site at any one time above the applicable thresholds. Although not required to report the fertilizer portions that are eligible for the exemption, it is acceptable and encouraged. This information benefits local emergency planners and responders, ensuring they are aware of hazards that are present at your facility.
Does the Retail Fertilizer Exemption also apply to other EPCRA reporting requirements?
The Retail Fertilizer Exemption does not extend to the reporting requirements for the other sections of EPCRA. This reporting exemption derives from the EPCRA definition of a hazardous chemical which is specific to the hazardous chemical inventory reporting of EPCRA sections 311 and 312 [40 CFR part 370].
Specifically, this exemption does not extend to:
Facilities with EPCRA Extremely Hazardous Substances may be required to report on the presence of these chemicals to support the development of local emergency response plans. Note that ammonia, phosphorous, and other fertilizers are listed EPCRA EHSs.
Facilities with CERCLA hazardous substances and EPCRA EHSs are required to report accidental releases of any of these listed substances in quantities at or exceeding their corresponding reportable quantities.
Facilities with 10 or more employees in covered industry sectors (which includes manufacturers of nitrogenous or phosphate fertilizers, including those that mix and blend), and meet established chemical activity thresholds are required to report.
For more information refer to the: Fact Sheet: EPCRA Reporting Requirements for Fertilizer Retailers (pdf)(603 MB).
What are some examples of the applicability of the Retail Fertilizer Exemption?
Multiple chemicals at a farm supply company
Example: A farm supply company sells ammonia fertilizer, ammonia cleaner, herbicides, and rodenticides to farmers. This company does not allow resale of its products. This is a retail facility which sells only to the ultimate customer.
The quantity of ammonia that the farm supply company holds for sale as a fertilizer to the farmers is eligible for the exemption and does not need to be included in the hazardous chemical inventory reports. However, the quantity of ammonia held for use as a cleaning agent, the herbicides, and the rodenticides are not eligible for the exemption and should be included in the EPCRA sections 311 and 312 hazardous chemical inventory reports [40 CFR part 370].
Multiple uses of ammonia from the same stock tank at retail facility
Example: An industrial supply company holds ammonia in one large storage tank at its retail sales facility. This industrial supply company sells ammonia for a variety of purposes, including to farms a fertilizer and to food manufacturers as a coolant for air conditioning and refrigerant systems. This company does not allow resale of its products. This is a retail facility which only sells to the ultimate customer.
The amount of ammonia in the tank that is held for use as a fertilizer to the farmers is eligible for the exemption and does not need to be included in the hazardous chemical inventory reports. However, the amount of ammonia in the tank that is held for use as a coolant is not eligible for the exemption and should be included in the EPCRA sections 311 and 312 hazardous chemical inventory reports [40 CFR part 370].
This supply company has the option of reporting the entire quantity held (both fertilizer and coolant uses) or reporting on only the portion held for use as a coolant.
Multiple uses of ammonia from the same tank at bulk facility
Example: An industrial supply company holds ammonia in large tanks at its bulk supply facility. This industrial supply company sells ammonia to retail facilities for a variety of uses, including for fertilizer and as a coolant. This is not a retail facility selling to the ultimate customer, therefore the ammonia at this facility is not eligible for the Retail Fertilizer Exemption and should be included in the EPCRA sections 311 and 312 hazardous chemical inventory reports [40 CFR part 370].
Direct sale of fertilizers and blending at an elevator
Example: An elevator company has stock tanks with ammonia and phosphoric acid. These chemicals are sold directly to farmers for use as fertilizer and are blended at the elevator to produce a new compound which is also sold to farmers as a fertilizer. The elevator is a retail facility that is selling to the ultimate customer.
The amount of ammonia and phosphoric acid held in the tanks for mixing or blending are not held for sale to the ultimate customer; they are held as starting materials for the purpose of producing a new fertilizer. Therefore, the amounts of ammonia and phosphoric acid that are intended for mixing or blending are not eligible for the exemption and should be included in EPCRA sections 311 and 312 hazardous chemical inventory reports [40 CFR part 370]. Yet, the amounts of ammonia and phosphoric acid in the tanks that are held for direct sale to the farmers are eligible for the exemption and do not need to be included in the hazardous chemical inventory reports.
This elevator company has the option of reporting the entire quantity held (both for use to produce a new fertilizer and for direct sale as a fertilizer) or reporting on only the portion held for use as a coolant.
Fertilizer Application Service Company
Example: A fertilizer application service company has diesel fuel and pesticides at its facility. This company transports the fertilizer from its facility to commercial crop fields and applies them to the crops on behalf of the farmer. This is the only use of fertilizer that this service company performs, and the diesel fuel is only used for this activity. In this scenario, the fertilizer application service company’s facility is a non-agricultural facility that holds fertilizer for sale to the ultimate customer, and the commercial crop fields are agricultural facilities.
The fertilizer stored at this facility for sale to the ultimate customer is eligible for the Retail Fertilizer Exemption and does not need to be included in the hazardous chemical inventory reports. However, the diesel fuel is not eligible for this exemption nor the Agricultural Operations Exemption; therefore the diesel fuel should be reported in the hazardous chemical inventory reports for EPCRA sections 311 and 312 [40 CFR part 370].