By: Bob Pickert
We recently provided a client alert for the United States Environmental Protection Agency’s (EPA) March 26, 2020 policy memo COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. The bottom line is that facilities are expected to make every reasonable effort to comply. If compliance is not possible, regulated facilities are advised to document that non-compliance was not intentional, and therefore not a criminal violation. For submittal of TRI forms (Form R or Form A), there is no relief from the July 1 deadline for submittal to EPA and state emergency response commissions. But what is a reasonable effort? We look to language from the law to answer that, but first we’ll provide some background, a summary of reporting requirements, and some considerations on collecting and compiling the required data and completing and submitting TRI reports during this COVID-19 pandemic.
Background of EPCRA Section 313
The Superfund Amendments and Reauthorization Act (SARA) was signed into law on October 19, 1986. The Emergency Planning and Community Right-to-Know Act (EPCRA) portion of SARA (also known as Title III) was in direct response to the December 1984 methyl isocyanate release from the Union Carbide plant in Bhopal, India that killed 3,787 people (claimed deaths are closer to 16,000) and injured at least 558,125 others. Most never knew about the highly toxic chemicals in their community. In 1985, EPA documented 190 chemical leaks from the Union Carbide methyl isocyanate plant in Institute, West Virginia. Congress responded by creating SARA Title III EPCRA Reporting Requirements (Sections 311, 312, and 313) to ensure citizens are informed about hazardous chemicals and toxic releases in their communities.
Overview of Release Reporting Requirements
EPCRA Section 313[1], Toxic Chemical Release Forms commonly known as TRI Form R (or Form A) requires the owner or operator of a facility that meets all three criteria below to report to the TRI Program, including:
- Specific Industry sectors – The TRI Reporting requirements apply to facilities in specific NAICS codes, Including Mining (212), Utilities (221), Manufacturing (31-33), various other manufacturing (includes 1119, 1133, 2111, 4883, 5417, 8114), Merchant Wholesalers (424), Non-durable goods (425), Wholesale Electronic Markets and Agents Brokers; Publishing (511, 512, 519), Hazardous Waste (562), and Federal Facilities (regardless of industry sector). Note that there are exceptions and it is the full six-digit NAICS code that determines a facility’s coverage under the TRI Program.
- Facilities that employ 10 or more full-time equivalent employees, and
- Facilities that manufacture, process, or otherwise use a TRI-listed chemical in quantities above threshold levels in a particular calendar year. The list of EPCRA 313 chemicals currently includes 755 individually listed chemicals and 33 chemical categories. The threshold for chemicals that are manufactured, imported, or processed is 25,000 pounds per calendar year; and the threshold for toxic chemicals otherwise used is greater than 10,000 pounds per calendar year. Note that persistent bioaccumulative toxic chemicals (PBTs) have lower thresholds than other TRI chemicals, including 100 pounds for lead.
Facilities that meet all of these criteria must submit a TRI Form R for each TRI-listed chemical it manufactures, processes, or otherwise uses in quantities above the reporting threshold to both EPA and the state in which the facility is located (or to the appropriate tribe, if located in Indian country). Facilities may be eligible to submit the shorter and simpler Form A if they do not manufacture, process, or otherwise use PBT chemicals in excess of 1 million pounds during the reporting year with no releases on-site or off-site, and 500 pounds or less sent for treatment, recycling, or energy recovery. There are higher thresholds for facilities that manufacture, process, or otherwise use non-persistent bioaccumulative toxic chemicals. Initial threshold determinations for TRI reporting have to be done for all chemicals manufactured, processed or otherwise used at a facility, so identifying eligibility for completing Form A can be a big timesaver.
Given the complexity of TRI reporting, there are a variety of common reporting errors, including:
- Not reporting for one or more chemicals
- Resubmitting last year’s forms or estimates
- Including exempted activities
- Ignoring mixtures or not looking at all components of a product
- Not factoring in releases
Facilities must report TRI forms using TRI-MEweb, EPA’s online TRI reporting application. TRI-MEweb prevents a variety of common reporting errors. Each year, the TRI Program contacts certain facilities as part of the TRI data quality process, focused on facilities reporting:
- the largest increases or decreases of wastes or releases from the previous reporting year,
- the largest releases of persistent PBTs,
- the largest releases to air or water,
- the highest risk-screening scores and the largest changes in scores from the previous year,
- invalid industrial classification codes,
- dioxin releases without an accompanying Form R Schedule 1,
- low or zero air release quantities for volatile TRI chemicals despite reporting a large amount of the chemical on-site,
- identical release quantities from previous reporting years,
- TRI data in the previous reporting year but not in the current reporting year, and
- reporting to other EPA/non-EPA programs but not to the TRI Program.
A Reasonable Effort is the Use of Available Data
It takes time to compile the information needed and prepare the material balances to calculate chemical releases to the environment, source reduction and recycling activities, and transfers to off-site locations to accurately report TRI data. EPA may take enforcement action(s) when required TRI reporting forms are not filed and/or filed reporting forms have significant data quality issues. But how accurate do estimates have to be? Language from the original law, EPCRA Title III Section 313 states: “In order to provide the information required under this section, the owner or operator of a facility may use readily available data (including monitoring data) collected pursuant to other provisions of the law, or, where such data are not readily available, reasonable estimates of the amounts involved.” That level of compliance burden is consistent with EPA’s recent enforcement guidance. TRI reporting can be complex, but there are significant civil penalties for non-compliance so it is important to demonstrate a good-faith effort to provide reasonable estimates for accurate reporting. You still need to gather and compile chemical inventory and purchasing records, waste shipments, and air emission data, but it helps to be aware of common reporting errors, EPA’s focus on data quality priorities, and identifying eligibility for completing Form A. EPA encourages facilities to make changes to their TRI reporting forms (revisions or withdrawals) if more accurate information becomes available. A 3rd party review of TRI reporting can provide an objective and confidential compliance assessment and raise your confidence in your TRI reports.
Need help? Start with EPA’s guidance for reporting and instructions for completing reporting Form R or Form A. Still need help? Reach out to one of the compliance specialists at EHS Support through Amy Bauer at amy.bauer@ehs-support.com or 251-533-6949.
[1] Codified in 40 Code of Federal Regulations (CFR) 372.
ABOUT THE AUTHOR Bob is an Environmental Health & Safety (EHS) manager with 25 years of experience leading and supporting cost-effective EHS compliance, management systems, and risk management programs for a wide variety of organizations. He specializes in environmental permitting & compliance programs; EHS audits & compliance verification; due diligence and M&A-related support; and occupational safety and health programs… Read More
