Executive Order 12856 required federal facilities to comply with all aspects of EPCRA (58 FR 41981; August 6, 1993). Prior to this action, EPCRA did not apply to federal facilities. Consequently, interpretive language previously issued as guidance for non-federal facilities often does not address issues specific to federal facilities. For example, the federal government produces many of its own products (i.e., scouring powder, bleach) for use by its own service people. These products are similar in form and concentration to analogous products manufactured by private companies for distribution to the general public. Many of the federal government's products are packaged in comparable quantities to those produced in the private sector. EPCRA provides an exemption at 40 CFR 370.66 for consumer products present in the same form and concentration as products packaged for distribution and use by the general public. The federal government's products, however, are not available to the general public. Would the federal products be exempt under the consumer product exemption if they are packaged in the same form and concentration as those manufactured in the private sector, even though they are not available for purchase by the general public?
Yes. Products manufactured by the federal government that are packaged in the same form (i.e., package size) and concentration as products manufactured by private industry are exempt from EPCRA 311/312 reporting requirements. The federal products need not be available to the general public to meet this exemption. The exemption applies either to the extent a product is used for personal, family, or household purposes, or is present in the same form and concentration as a product used by the general public (whether or not it is actually used by the general public (40 CFR 370.66)). For further guidance on specific scenarios, federal agencies should look to their respective Executive Order implementing offices to determine the extent of reporting. Some federal agencies have agreed to disregard certain exemptions even though their facilities may qualify for them in order to demonstrate the federal government's leadership role in source reduction and pollution prevention.