What Is It?

TRI first came into existence in 1986 as part of the Superfund Amendments and Reauthorization Act (SARA) and Emergency Planning and Community Right-to-Know Act (EPCRA). TRI’s creation was influenced by an event in Bhopal, India in 1984 where a cloud of toxic gas from the Union Carbide chemical plant killed thousands. Then in 1985 a serious chemical release occurred to a similar chemical plant in West Virginia. EPA wanted a way for the public to learn more information about the chemicals used in their communities so it setup a reporting system for companies using potentially harmful chemicals above certain thresholds.

What’s the Difference Between TRI, Form R and SARA 313?

There are other names that are often used to refer to TRI reporting.

The first is “SARA 313.” TRI reporting is covered under Section 313 of SARA. Thus, TRI reporting is also referred to as “SARA 313” reporting. Other SARA reporting requirements include SARA 311 and 312 which are the Tier II chemical inventory reporting requirements we covered in our EPCRA Tier II blog, SARA 304 which is emergency spill reporting, and SARA 302 and 303 which cover emergency planning and notification requirements.

TRI reporting can also be known as “Form R” reporting. This is because one of the names of the forms used for TRI reporting is called Form R.

Reporting Criteria

In order to qualify for TRI reporting, your company must meet this criteria:

• Employ 10 or more employees;
• Fall under an identified NAICS code from the 2017 NAICS list; and,
• Manufactures, processes, or uses a chemical on the TRI list of approximately 770 chemicals at a threshold above allowed levels. These chemicals have been identified as ones with significant effects to the environment or human health.  Chemicals are continually being added to this list.

2022 Updates

Due July 1, 2022:

• All natural gas processing facilities that receive and refine natural gas are now subject to reporting.
• Four PFAS chemicals have also been added:  silver(I) perfluorooctanoate (335-93-3), perfluorooctyl iodide (507-63-1), potassium perfluorooctanoate (2395-00-8), and 2-Propenoic acid, 2-methyl-, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,12-heneicosafluorododecyl ester, polymer with 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,10-heptadecafluorodecyl 2-methyl-2-propenoate, methyl 2-methyl-2-propenoate, 3,3,4,4,5,5,6,6,7,7,8,8,9,9,10,10,11,11,12,12,13,13,14,14,14-pentacosafluorotetradecyl 2-methyl-2-propenoate and 3,3,4,4,5,5,6,6,7,7,8,8,8-tridecafluorooctyl 2-methyl-2-propenoate (65104-45-2).
• 29 contract sterilization facilities now must estimate their quantities of ethylene oxide and/or ethylene glycol manufactured, processed or otherwise used to determine if they are subject to TRI reporting.

In the previous reporting year (due July 1, 2021), over 172 PFAS chemicals were added to the list of chemicals and the thresholds for these were significantly less than other chemicals.

Report Format

TRI uses two different forms for reporting, Form R and Form A.  First, you will use Form R to identify chemicals.  For the rest of the reporting, you need to continue with Form R or use Form A.  Form A is a shortened form and only available if your company meets certain criteria in type of chemical, quantity, and waste generated. If you don’t meet the criteria for Form A, then you must use the longer Form R.

A form (R or A) must be completed for each chemical you manufacture, process or use in quantities above the threshold.

How are TRI Reports Submitted?

TRI reports are completed federally through EPA’s TRI-MEweb website. You will need to make copies to submit to your state agency as well.

This information will become public information and be searchable in several online databases.

Supplier Notifications

Companies who process or manufacture chemicals or chemical mixtures are required to send annual supplier chemical notifications per EPCRA Section 313.  For more details on who and what that entails, check out our blog “Annual Supplier Notifications: Does This Affect Your Company“?

Have Questions? Need Help?

Do you need help with this environmental reporting requirement? iSi’s compliance team can help determine if you are required to submit and help you get the forms submitted. Contact us here for more information and pricing.

EPA has made some updates, changes and additions to their Toxic Release Inventory (TRI) reporting.  Their focus on environmental justice is evident in many of these changes.

Because the TRI is used as a mechanism to publicly report businesses’ chemical and release information, changes and additions to the TRI is a logical place to start when it comes to EJ’s goal of transparency and giving citizens equal access to information to make decisions on where they live and work.  Thus, this is an easy place to start, and where we may find more changes throughout the year.

TRI reports, aka Form R, also aka SARA 313 reports are due July 1.

What’s Environmental Justice?

EPA defines EJ as:

“The fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. This goal will be achieved when everyone enjoys:

• The same degree of protection from environmental and health hazards, and
• Equal access to the decision-making process to have a healthy environment in which to live, learn, and work.”

EPA has an entire section dedicated to EJ on its website.  They even have a mapping and search tool called EJSCREEN that combines environmental and demographic indicators in maps and reports.

Changes in Some de Minimis Percentages

EPCRA Section 313 and chemical categories are subject to a 1% de minimis concentration unless the substance has been named a carcinogen or potential carcinogen. That is, when you’re determining thresholds of chemicals, some chemicals can be exempt from reporting if you have minimal concentrations of non-Persistent Bioaccumulative Toxic (PBT) chemicals in mixtures.  This is called a de minimis exemption.  The following chemicals have had their de minimis percentages altered from 1% to 0.1% because they are now OSHA carcinogens:

Reporting Year 2020 (due July 1, 2021)

• Pyridine
• Methyl acrylate
• Quinoline
• Vinylidene chloride

Were Changed for Reporting Year 2019 (due last year)

• N,N dimethylformamide (CAS 62-12-2)
• 2-mercaptobenzothiazole (CAS 149-30-4)
• Molybdenum trioxide (CAS 1313-27-5)

Supplier Notifications

Don’t forget that companies who process or manufacture TRI-listed chemicals or chemical mixtures are required to send annual supplier chemical notifications per EPCRA Section 313.  For more details on who and what that entails, check out our blog “Annual Supplier Notifications: Does This Affect Your Company“?

Per- and Polyfluoroalkyl Substances (PFAS) Reporting

The 2020 National Defense Authorization Act requires a PFAS to be added to TRI when it meets a certain criteria.  For reporting year 2020, EPA added 172 PFAS chemicals.  The threshold for those is 100 pounds, manufactured, processed or otherwise used.  If you use any of these chemicals, these should be included in your reporting year 2020 reports, due July 1, 2021.

For the 172 PFAS chemicals, the de minimis concentration for perfluorooctanoic acid (PFOA) is 0.1%.  For all other PFAS chemicals, the de minimis level is 1%.

So far for the 2021 reporting year, EPA has added three new PFAS: perfluorooctyl iodide, potassium perfluorooctanoate and silver(I) perfluorooctanoate.  These also have the same threshold of 100 pounds. EPA will be adding more as they come along.  EPA is anticipating that perfluorobutane sulfonic acid (PFBS) will be the next one added.

For more information about the 172 PFAS chemicals, go to EPA’s site here.  For guidance on PFAS reporting, you can visit the special PFAS guidance here.

PFAS Fire Suppression Foam

Fire suppression aqueous film forming foam (AFFF) is a common PFAS chemical.

For this chemical, if it is released for system testing, training or to suppress a fire, it’s considered otherwise use and needs to be reported on your TRI.

If it’s not used onsite, but just stored there, it’s not considered an activity and does not need to be reported.  Only when it’s released from a fire suppression system is it considered an activity (that is, manufacture, process or otherwise).

If you use the fire foam offsite it’s not included in the threshold.

TSCA Work Plan and High-Priority Chemicals

EPA would like to add chemicals that are listed on the Toxic Substances Control Act’s (TSCA) Work Plan.  The TSCA Work Plan is a list of 90 chemicals under further assessment by EPA.  Those chemicals are chosen based on their potential for high hazard and exposure. As an example, the first 10 of those 90 chemicals currently under review include:

• 1,4-Dioxane
• 1-Bromopropane
• Asbestos
• Carbon Tetrachloride
• Cyclic Aliphatic Bromide Cluster
• Methylene Chloride
• N-methylpyrrolidone
• Pigment Violet 29
• Tetrachloroethylene, aka Perchloroethylene
• Trichloroethylene

EPA would also like to take a look at adding other chemicals from a list of 25 chemicals suggested for addition by the Toxics Reduction Institute in Massachusetts.  The group petitioned EPA to add 25 more chemicals to TRI.  EPA is evaluating those to determine if they meet the EPCRA 313(d)(2) criteria.   Some examples of these include:

• 1, 2, 3-Trichlorobenzene
• 1,3-Dichloro-2-propanol
• n-Propyl Bromide (1-Bromopropane)
• Formamide
• 1,1’-Azobis (Formamide)
• Nitrilotriacetic Acid, Trisodium Salt
• N, Ndimethylacetamide
• Hexahydrophthalic Anhydride

Facilities Added to TRI Reporting Requirements

Natural Gas Processing Facilities

Natural gas facilities will be an included type of facility on the Emergency Planning and Community Right to Know Act (EPCRA) Section 313.  Thus, those facilities will need to submit reports to TRI.  EPA wants to make sure natural gas processors’ chemical releases and waste management activities with TRI-listed chemicals are available to the public because millions of people live within 30 miles of at least one natural gas processing facility.

Contract Sterilization Facilities

Further reporting of ethylene oxide (EtO) will be required on the TRI.  Specifically, contract sterilization facilities have been called out as types of facilities this will affect.  EtO is used to sterilize medical devices and to make certain chemicals.  Contract sterilization facilities currently are not required to report, but they will be required in the future.  EPA says that these facilities often are located in areas with environmental justice issues, affecting those who work there and live around them.  Adding these facilities to the list will give more information about EtO releases and allow EPA to respond to the health and environmental threats they cause.

Adding More TRI Tools for the Public

EPA wants to make TRI data even more useful and accessible for the public.  As a result, they want to make the following additions:

• Add a demographic profile section to TRI so that you can search by income profile and race, similar to what’s available on EJSCREEN;
• Launch a Spanish version of the TRI; and,
• Promote the Pollution Prevention (P2) information that companies are required to include in their TRI reports. EPA hopes that this will encourage the community to work with the TRI facilities to increase their P2 efforts and reduce releases in the community.

There are currently no timetables for completion of these new goals and additions.  iSi will keep you updated as we see changes and additions finalized and added to TRI or EPCRA.

A recent U.S. Supreme Court case regarding legal jurisdiction and Native American tribal lands has extended itself to environmental regulations compliance authority in the state of Oklahoma.

Native Lands Still Native

It all started when Patrick Murphy, a descendent of Native Americans, committed murder in 2015 within the Muscosgee reservation territory.  He argued to the courts that the Oklahoma Enabling Act of 1906 never disestablished the territories of the Five Civilized Tribes.   Because of this, he should have been prosecuted by federal courts and not the state of Oklahoma courts.  That is, the state courts should have no jurisdiction over Native Americans on federal reservations.  The 10th Circuit Court agreed with Murphy and it was ultimately appealed to the Supreme Court.  In 2020, the Supreme Court agreed that the territories had not been disestablished, giving more power to the tribes.

The territories involved in this case make up the eastern half and some of southern Oklahoma, including Tulsa.  The ruling means the state of Oklahoma would have no criminal jurisdiction over Native Americans within the reservations.  Federal regulations still need to be enforced within these lands and major crimes like murder would be charged federally, but the tribes could prosecute all other Native American crimes in their own courts.

The court ruling led to a lot of concern not only about the ramifications to major crimes committed in these territories, but the legal impact to environmental regulations, taxation and other regulations on reservation lands.

Oklahoma Petitions EPA

Seeing the potential for a wide variety of environmental rules being affected, the potential for inconsistent standards and efforts, and the overall impact to Oklahoma businesses, the Governor of Oklahoma wrote a request letter to EPA in July 2020.  In the letter, he asked that the state be authorized to continue to regulate environmental compliance throughout this territory.  The state agencies currently involved in overseeing environmental regulations are the Oklahoma Department of Environmental Quality, the Oklahoma Department of Agriculture, Food and Forestry, the Oklahoma Water Resources Board and the Oklahoma Corporation Commission.

On October 1, 2020, EPA approved this request and gave the state authority to continue its efforts in overseeing any of the programs it currently oversees in those areas.  EPA will continue to oversee the state of Oklahoma’s programs as it does in many states.

Tribal Reaction

The tribes are not happy with this decision.  Cherokee Nation Principal Chief Chuck Hoskin, Jr. said “[The governor’s decision] ignores the longstanding relationships between state agencies and the Cherokee Nation. All Oklahomans benefit when the tribes and state work together in the spirit of mutual respect and this knee-jerk reaction to curtail tribal jurisdiction is not productive.” [Taken from The Oklahoman, Oct. 6]

It’s unlikely this is the last we’ll hear of this issue.  The tribes may have a course of action to take EPA to court for not fully consulting with them prior to the decision per EPA’s Policy on Consultation or Coordination with Indian Tribes, or with the government-to-government consultation with affected tribes requirement per Executive Order 13175.

Any person, company or organization who manufactures or imports mercury or mercury-added products, or intentionally uses mercury in a manufacturing process are required to file a report to EPA by July 1, 2019. 

Called the “Mercury Inventory Reporting Rule,” it is a part of the Toxic Substances Control Act (TSCA).  The final rule for this was published in June 2018.  TSCA requires EPA to publish an inventory on mercury supply, use and trade every 3 years.  EPA’s next inventory is due in 2020, so as a result, they are requiring those use and import mercury to get their data submitted by July 1, 2019.

Requirements

If you fall under this requirement, it doesn’t matter how much mercury you use, you still need to report to EPA.  Reporting is done through EPA’s Central Data Exchange.

The data you’ll use in the report are quantities from calendar year 2018.  Some of the items required to be reported include:

• Amount of mercury produced, imported, stored, used, sold, or exported;
• Types of products made;
• Types of manufacturing processes and how mercury is used;
• Business sectors to which mercury or mercury-added products are sold;
• Country of origin of imported mercury or mercury-added products; and
• Destination country for exported mercury or mercury-added products.

Once submitted, you’ll be required to submit this report again every 3 years.  EPA will not publish names or identifying information once they publish the results.

Exemptions

There are a few exemptions to reporting.  In the following instances you won’t need to report:

• Your mercury activity isn’t for commercial advantage;
• The mercury you use is only as an impurity;
• You’re generating, handling or managing mercury-containing waste only (and not recovering it for commerce purposes)
• The mercury is in an assembled product that contains a mercury component (EPA gives the example of a mercury light bulb for a car manufacturer); or,
• You manufacture assembled products that contain a component that’s a mercury-added product but you didn’t manufacture or import that component.

EPA Webinar

EPA is having two webinars to explain this Mercury Inventory Reporting Rule.  One is Tuesday May 21, the other is Thursday May 23.  Click on those dates to go to the signup page for each.