Each year about this time, companies are focused on the deadline to submit Toxics Release Inventory (TRI) data to the U.S. Environmental Protection Agency (EPA). Companies well acquainted with this reporting ritual have established protocols to collect the data to enable timely reporting. With the July 1, 2023, deadline rapidly approaching, there are a few new reporting features of which to be aware. This column briefly summarizes important new elements.
Reporting Obligation
As covered facilities know well, entities subject to the reporting requirement must submit data for activities that occurred during the calendar year 2022. Companies must report if they engage in activities involving covered chemical substances, meet chemical activity thresholds and are either in a covered industry sector and exceed the employee threshold or they are specifically required to report based on a determination by the EPA under the Emergency Planning and Community Right-to-Know Act (EPCRA) Section 313(b)(2).
The new requirements for submitting information for the 2022 reporting year are summarized below.
There is little time left until the July 1, 2023, deadline.
First, the total number of per- and polyfluoroalkyl substances (PFAS) that companies must consider, and in some cases, report, has now reached 180. The EPA has steadily increased the number as part of its approach to addressing PFAS. Last year, the agency updated the regulations to identify five PFAS that must be reported pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA).
Second, under 40 C.F.R. Section 372.38(a), the de minimis levels for aniline (Chemical Abstracts Service Registry Number (CAS RN) 62-53-3) and acrolein (CAS RN 107-02-8) have been lowered from 1.0% to 0.1% following the classification of these chemicals as carcinogens in assessments by the International Agency for Research on Cancer (IARC).
Third, in 2021, the EPA added natural gas processing (NGP) facilities to the sectors covered by TRI reporting requirements. Following this update, companies previously not required to report must now submit a TRI report by July 1, 2023. Companies newly reporting will likely have the biggest learning curves.
Fourth, in 2021, the EPA expanded TRI reporting requirements to include certain contract sterilization facilities previously not required to report on ethylene oxide releases. The EPA has issued a determination extending TRI reporting requirements to 29 ethylene oxide facilities and 16 contract sterilization facilities for ethylene glycol. If reporting thresholds are met, the facilities must submit TRI data beginning in 2023. The focus on ethylene oxide is part of the EPA’s broader strategic effort to diminish ethylene oxide emissions.
Fifth, the EPA codified the definition of “parent company” for purposes of TRI reporting and requires the reporting of a foreign parent company when applicable. The previous regulation required each facility to identify its parent company in annual TRI reporting forms. The need to identify foreign parents may result in devoting more effort to clarifying how the parent company data element should be represented on the form.
Discussion
Companies understandably take TRI reporting obligations very seriously, as the data are important to the EPA and state agencies, and non-compliance invites significant penalties. Entities should review carefully which PFAS are reportable during each reporting year. For reporting year 2023 (due by July 1, 2024), the NDAA automatically added nine additional PFAS to the TRI list. Facilities in TRI-covered industry sectors should begin tracking and collecting data on these chemicals during 2023.
While all the listed PFAS are subject to the de minimis exemption for reporting year 2022 and companies need not report PFAS under that threshold, this exemption could be eliminated as soon as reporting year 2023. The EPA proposed provisions that would classify PFAS as “chemicals of special concern” for TRI purposes, thereby removing the de minimis exemptions and requiring TRI reporting for all listed PFAS, regardless of concentration. The proposal is controversial for many reasons, not the least of which is that trace amounts of PFAS would be reportable even in cases where they were not intentionally added.
Beyond PFAS-related changes, all the changes described above are important. Take care in reporting accurate data to ensure compliance. There is little time left until the July 1, 2023, deadline. Readers who suspect they might be subject to TRI reporting requirements are urged to verify the data and use the EPA’s online resources to confirm.
