Would pesticide sprayed on ground count towards §302 threshold?
Section 302 requires owners and operators of facilities that have extremely hazardous substances (EHSs) present above the threshold planning quantity (TPQ) to participate in emergency planning (40 CFR §355.20). If a facility has a pesticide sprayed on its grounds without first being stored at the facility, must the amount of EHS present in the pesticide that has been applied be counted towards the TPQ?
Under section 302, an owner or operator must identify any EHSs that are present at the facility and, for each EHS, determine the amount present. If the amount present equals or exceeds the EHSs TPQ, then the facility is subject to emergency planning requirements. In this specific example, the facility would not count the amount of EHS present in the soil toward the EHSs TPQ because it is not present in a contained structure. The definition of facility (40 CFR §355.61) includes all buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person. This includes man-made structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use. Once it is applied, the residual pesticide does not have to be applied toward the threshold determination. It can be considered no longer "present at the facility." This does not, however, exempt the owner or operator from emergency planning requirements for EHSs present above their TPQ at the facility, such as any EHS in a pesticide that is brought on-site prior to application, stored, or present anywhere else at the facility.