May 2010

Toxic Release Inventory (TRI) requires the U.S. Environmental Protection Agency (EPA) and states to collect annual data on releases and transfers of certain toxic chemicals from industrial facilities, and make the data available to the public per the Emergency Planning and Community Right-to-Know Act (EPCRA) Section 313 Form R regulation. The Form R report is not intended to impose restrictions on which chemicals can be stored, used, released, discarded or transferred at a facility. Rather, it is meant to give the public information about the actual or potential releases of hazardous chemicals in and around their neighborhood.

Know if Your Facility Needs to Report
The TRI is based on a specific list of chemicals – currently there are more than 600 chemicals that consist of 30 different chemical categories. This means a facility could have a specific chemical on the list, such as Xylene, or be part of a chemical category, such as Dioxin and Dioxin-Like Compounds.

Multiple approaches can be taken when evaluating what chemicals are used at a facility such as:  a review of the facility’s material safety data sheets (MSDS), supplier notifications, process knowledge (including any knowledge of byproducts) and historical report filings.

A facility is required to report if the facility has:  10 or more full time employees (equivalent to 20,000 total hrs/year or more worked by all employees at the facility); has a primary North American Industry Classification System (NAICS) code (e.g., 3315 Foundries) listed in the Form R instruction manual; and manufactures more than 25,000 lb/year, processes more than 25,000 lb/year or otherwise uses more than 10,000 lb/year of any listed chemical. Completing and submitting Form R reports accurately is a time-consuming process, especially for small businesses. EPA expects specific and detailed chemical usage information, including a facility’s chemical disposal methods. As an example, if a facility is disposing of a chemical by sending it to a landfill, EPA will expect the facility to report information about when it was removed, the location of the landfill, how much was sent to the landfill and any treatment performed on the chemical before removing it from the facility.

Exemptions
An article exemption is for reported chemicals. An article is defined as an item that is already manufactured and is formed into a specific shape or design during manufacture, has end-use functions dependent in whole or in part on its shape or design during end-use and does not release a Section 313 chemical under normal processing or otherwise use conditions at a facility (less than 0.5 lbs/year total released). Note the article exemption does not apply to the manufacture of articles. Examples of the article exemption would be metal wire being bent or sheet metal being cut. These products are applicable to the exemption as long as the diameter of the wire or the thickness of the sheet is not physically changed beyond recognition and the bending or cutting process did not result in a release of 0.5 lbs or more of a toxic chemical.

Another exemption is the facility grounds maintenance exemption which applies to the use of products used for routine janitorial or facility grounds maintenance. This exemption includes both individually packaged products (e.g., cans of paint) and substances in bulk containers (e.g., 55-gallon drums of paint). If paint used from drums to maintain roads and signs for a facility is similar in type and concentration to consumer products, the listed toxic chemicals in the paint would be exempt from EPCRA 313 reporting requirements. However, if the paint is used for process-related roads or equipment, such as airstrips at federal facilities, the exemption would not apply.

There is also the “de minimis concentration limitation” exemption. The de minimis exemption allows covered facilities to disregard certain minimal concentrations of listed non-PBT (toxic) chemicals in mixtures or trade name products when making threshold determinations as well as release and other waste management determinations. The de minimis exemption does not apply to the manufacturer of a listed toxic chemical except if the listed toxic chemical is manufactured as an impurity and remains in the product distributed in commerce below the appropriate de minimis level or is imported below de minimis concentrations. The de minimis exemption does not apply to a byproduct manufactured coincidentally as a result of manufacturing, processing, otherwise use or any waste management activity. The list of toxic chemicals in the publication Toxic Chemical Release Inventory Reporting Forms and Instructions for the current reporting year contains the de minimis values for each of the non-PBT chemicals and chemical categories.

Proposed Additions
For the first time in more than 10 years, EPA has proposed adding 16 new cancerous chemicals to the list of toxic releases that companies must report in annual Toxic Release Inventory reports.   Announced by EPA on April 6, 2010 after review of available studies, the additional chemicals were concluded to cause cancer in people. Four of the chemicals proposed for addition are considered polycyclic aromatic compounds (PACs). The PAC category includes chemicals that are persistent, bioaccumulative, toxic (PBT) and are likely to remain the environment for a long time. The chemicals are not readily destroyed and may build up or accumulate in body tissue.

A facility that is applicable to the EPCRA Section 313 regulation and has not been filing Form R reports should contact legal counsel immediately and work on filing a report as quickly as possible. The Form R reports are retro, meaning that when facility files a report in July 1, 2010, it is really for the 2009 calendar year. After submitting Form R reports, a facility should expect to receive a confirmation letter from EPA in 60-120 days. If the confirmation notice is correct, then the facility is done for that reporting year. If there is a mistake, the facility must correct and return the submission. Filing Form R reports promptly and accurately is beneficial to facility owners, plant employees and concerned members of the public. Although the form is time consuming, completing and submitting it in a timely fashion will reduce the facility’s risks of incurring a fine, the facility employees’ risks of encountering hazardous chemicals unknowingly and the public’s risks of living in the vicinity of hazardous chemicals with no way to access information about them. If your facility has not been filing Form Rs, you should investigate the reason immediately.

^© 2011 August Mack Environmental, Inc.

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