Toxic Release Inventory Reporting – Upcoming Deadline

May 20, 2019 Advisory

What is Toxic Release Inventory (TRI) reporting?

Federal regulations require that certain covered facilities report toxic releases to air, discharges to surface waters, and quantities shipped offsite as wastes by July 1, covering the previous calendar year. TRI reporting derives from the Emergency Planning and Community Right-to-Know Act (EPCRA), which was enacted in 1986 in response to environmental and safety concerns posed by the storage and handling of toxic chemicals by select industries. These concerns were prompted by the 1984 tragedy in Bhopal, India, which resulted from a large accidental release of methylisocyanate fatally and seriously injuring more than 2,000 people. EPCRA’s “Community Right-to-Know” provisions help increase public knowledge and access to information about chemicals stored at industrial facilities, including the release of those chemicals into the environment.

The United States Environmental Protection Agency (EPA) expects that industries that are subject to TRI reporting requirements (see below) timely report accurate and reliable data. Without accurate and reliable inputs from industry, EPA is unable to further its goal of public transparency of toxic releases through the TRI program.

Who is required to report?

While TRI reporting is not a new requirement, annually refreshing your understanding of whether your company is required to report and, if you do not report, why your company is exempt from reporting, is consistent with good environmental compliance management practices.

By way of overview, TRI reporting is required if the facility:

  • Is included under a North American Industry Classification System code specifically identified in the TRI regulations; and
  • Has 10 or more full-time employee equivalents; and
  • Manufactures, processes, or otherwise uses certain listed chemicals in quantities greater than established thresholds during the previous calendar year.

Covered industries include: manufacturing, machinery, textiles, apparel, lumber and wood, furniture, paper, printing and publishing, metal and coal mining, electric utilities, commercial hazardous waste treatment facilities, chemical and allied products wholesale, petroleum bulk terminals and plants, solvent recovery services, and other related industries.

How do businesses comply with TRI reporting obligations?

Facilities required to submit TRI reports must calculate the total amount of toxic chemical releases to the air, discharges to the surface water, and land disposal or recycling activities throughout the previous calendar year. For reporting year 2018, the reports must be submitted to the EPA on or before July 1, 2019.  Reports are submitted electronically via the EPA’s Central Data Exchange system.

Consistent with EPA’s goal to ensure public access to toxic release information, violations of TRI reporting requirements carry hefty penalties – to deter inadequate or inaccurate reporting or not reporting at all, when required. As contrasted with other environmental compliance violations, correcting a TRI reporting violation requires disclosure to EPA that the business failed to previously file a report when required or provide accurate data about the amounts of toxic releases and/or specific chemicals that were released. Against the backdrop of EPA’s enforcement efforts over the years, including the assessment of significant penalties for entities who violate TRI reporting requirements, many companies seek to benefit from enforcement incentives by way of disclosing TRI reporting violations through EPA’s Audit Policy.  If the conditions of EPA’s Audit Policy are satisfied, including, among others, the systematic discovery of violations through an environmental audit and the prompt and timely disclosure of same, regulated entities may be eligible for a reduction in or, in some instances, elimination of the gravity-based civil penalty that would otherwise be assessed by EPA. The EPA’s eDisclosure web-based portal streamlines the submittal of voluntary disclosures of TRI reporting violations. For companies interested in pursuing voluntary disclosure under the EPA’s Audit Policy, we recommend developing a strategy early on in the TRI evaluation process to ensure conformance with the conditions set forth in the Audit Policy.

Wiggin and Dana’s Environmental Health & Safety lawyers have significant experience resolving TRI-related and other environmental compliance matters for a variety of clients in a broad array of industry sectors. Please contact Mike Miller with any inquiries regarding our Environmental Health & Safety practice.