Congress Tightens Toxics Release Inventory Reporting for 2008 Chemical Data

An Environmental Protection Agency ("EPA") rule relaxing Toxics Release Inventory ("TRI") reporting was recently vacated by the 2009 Omnibus Appropriations Act, P.L. 111-8 ("Act"), affecting TRI reports due on July 1, 2009. The legislative change was mandated by Division E, Title IV, Section 425 of the Act, a provision authored by Sen. Frank D. Lautenberg (D-NJ). Sen. Lautenberg has long been a proponent of stringent chemical regulation, including introducing the failed Kids Safe Chemical Act last session. He has vowed to continue to push for reform of the Toxic Substances Control Act. As a result of the legislation vacating EPA's rule, facilities will have to prepare more detailed "Form R" reports instead of simple "Form A" certifications for Persistent Bioaccumulative and Toxic ("PBT") chemicals and certain quantities of non-PBT chemicals.

The now-vacated "Toxics Release Inventory Burden Reduction Final Rule," 71 Fed. Reg. 76932 (Dec. 22, 2006) ("Rule") amended EPA's TRI reporting program requiring owners and operators of certain facilities that manufacture, process, or otherwise use listed toxic chemicals above threshold amounts to report annual releases and other waste management quantities on EPA Form 9350-1 (Form R) or EPA Form 9350-2 (Form A), pursuant to Section 313 of the Emergency Planning and Community Right-to-Know Act and Section 6607 of the Pollution Prevention Act. The vacated Rule had made two significant changes. First, it allowed the use of Form A certifications for PBT chemicals when annual releases were zero and the total of the PBT chemical recycled, combusted for energy, and treated for destruction did not exceed 500 pounds. Second, it increased the Form A eligibility threshold for non-PBT chemicals to an annual reportable amount of 5,000 pounds for releases, recycling, energy recovery, and treatment for destruction, provided the amount of releases did not exceed 2,000 pounds and the facility met an annual 1 million-pound manufacturing, processing, or other-use limitation.

The result of the legislative change is that TRI reporting for year-2008 PBT and non-PBT chemical data now reverts back to pre-2007 requirements. Going forward, all reports for PBT chemicals must be submitted using Form R. For non-PBT chemicals, a Form A certification may be used only if the annual reportable amount does not exceed 500 pounds, and the chemical was manufactured, processed or otherwise used in an amount not exceeding 1 million pounds during the reporting year. It is expected that EPA will issue new regulatory text to reflect this mandated change shortly. However, reporting under the pre-2007 requirements is self-implementing. This means that for the upcoming reporting period, regulated entities must follow the old rules.

TRI Forms A and R are due on July 1, 2009. Given the timing of this regulatory change, EPA has indicated that owners and operators may use readily available data and reasonable estimates. EPA also will ensure, reportedly, that TRI-ME software and other reporting materials are revised and made available.