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Release notification requirements for an EHS generated as by-product

Pursuant to Section 304(a)(2), the owner or operator of a facility must report to the State Emergency Response Commission (SERC) and the Local Emergency Planning Committee (LEPC) any releases of extremely hazardous substances (EHSs) or CERCLA hazardous substances which equal or exceed established reportable quantities (RQs).  This requirement only applies, however, to owners and operators of facilities at which hazardous chemicals are produced, used, or stored.  For purposes of EPCRA emergency release notification, is a hazardous chemical considered "produced" if it is generated solely as a by-product which is immediately released to the air?  Does the facility become subject to release reporting requirements even if this by-product is the only hazardous chemical present on-site?

Generation of a hazardous chemical as a by-product is considered "production" under Section 304(a)(2), and any facility generating a hazardous chemical in this manner must evaluate EHS and CERCLA hazardous substance releases for EPCRA notification purposes. EPA considers the term "produce" to be synonymous with "manufacture" under Section 313, and according to the definition in 40 CFR 372.3, manufacturing includes coincidental generation of a chemical by-product during the production, processing, use, or disposal of another chemical substance or mixture.  Releasing the chemical by-product to the air immediately following production in no way alleviates the facility's reporting burden.  Further, when a facility produces substances which themselves are not hazardous chemicals, but which after release rapidly form hazardous chemicals in the environment, the hazardous chemicals are also considered "produced" for purposes of EPCRA emergency release notification (September 29, 1986, 51 FR 34534).  Therefore, facilities at which hazardous chemicals are produced as a by-product of facility operations, including those rapidly formed in the environment subsequent to their release, are required to notify the SERC and LEPC of any EHS or CERCLA hazardous substance release which equals or exceeds an RQ within a 24-hour period.