EPA Amends Toxics Release Inventory Reporting Rules for 2008 Chemical Data

Yesterday, the Environmental Protection Agency ("EPA") published in the Federal Register the final rule implementing Congress's recent vacatur of the December 22, 2006 "Toxics Release Inventory Burden Reduction Final Rule," 71 Fed. Reg. 76932 ("Burden Reduction Rule"). This final rule was set into motion by the 2009 Omnibus Appropriations Act, P.L. 111-8, enacted on March 11, 2009, where Congress pulled back the Burden Reduction Rule enacted by the Bush Administration. Since this action is being taken in compliance with a Congressional legislative mandate, EPA did not subject this rulemaking to notice and comment, but implements the final rule as effective immediately. The now-vacated Burden Reduction Rule had relaxed Toxics Release Inventory ("TRI") reporting for Persistent Bioaccumulative and Toxic ("PBT") chemicals and certain quantities of non-PBT chemicals. As a result of the legislation and the regulatory change, facilities must prepare more detailed "Form R" reports instead of simple "Form A" certifications for PBT chemicals and certain quantities of non-PBT chemicals. TRI Forms A and R for Reporting Year ("RY") 2008 are due on July 1, 2009.

The Burden Reduction Rule had 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 Burden Reduction Rule 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. It also 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.

This action returns the TRI reporting rules to those in effect before 2007. This means that all reports for PBT chemicals must be submitted using Form R. Form A for PBT chemicals is prohibited. 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 RY 2008. If a facility has submitted TRI Form A for RY 2008 on or after March 11, 2009 using the Burden Reduction Rule to determine eligibility, the facility must reexamine whether it is still eligible to file Form A. If the facility determines that it is no longer eligible to file Form A, then the facility must revise and resubmit its RY 2008 report on Form R.

Given that facilities have collected RY 2008 data using the vacated Burden Reduction Rule, and TRI reports are due July 1, 2009, EPA is allowing facilities to utilize "best estimates" in order to file under the tighter reporting obligations. This allowance applies only to RY 2008. For the following year's data (i.e., 2009), facilities must go back to actual quantities used or released.