The U.S. Environmental Protection Agency (EPA) announced on April 29, 2021, that it will be “taking important steps under the Toxics Release Inventory (TRI) to advance environmental justice, improve transparency, and increase access to environmental information.” The EPA plans to expand the scope of TRI reporting requirements to cover additional chemicals and facilities, including those not currently reporting ethylene oxide (EtO) releases. The agency also announced enhancements to its TRI reporting tools, but this article will focus on the chemical expansion effort and why it is significant.
The TRI Reporting Program
TRI reporting is a core element of the EPA’s tracking of industrial chemical production, use and distribution. The EPA considers the chemicals listed under the TRI program as capable of posing a threat to human health and the environment. “Releases,” meaning discharges into the air, water, or placed in some sort of land disposal, are reported annually. The agency values the data it harvests from TRI reporting; failure to report, or faulty reporting, are target-rich areas for enforcement. Listing new chemicals on the TRI reflects the EPA’s current thinking regarding chemicals of interest for regulatory purposes.
Additions to TRI Reporting
The EPA for several years has focused on the effects of EtO on human health, including cancer, and the environment. EtO serves as a chemical feedstock and a sterilization agent. It’s no surprise that the agency is broadening TRI reporting on EtO to include certain contract sterilization facilities that use EtO but that are not currently required to report this information. The EPA states that many contract sterilization facilities are located near areas with environmental justice concerns. Making more information available about releases of EtO will assist it in identifying and responding to any human health and environmental threats they cause.
The agency also intends to make the following changes to expand the TRI program to protect the health and safety of underserved communities, including:
TRI reporting for natural gas processing facilities. A final rule proposes adding natural gas processing facilities to the list of industry sectors covered under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). This addition to TRI would increase the publicly available information on chemical releases and other waste management activities of TRI-listed chemicals from that sector. Once the EPA issues a final rule, the report for any calendar year must be submitted on or before July 1 of the following year.
TRI reporting for additional per- and polyfluoroalkyl substances (PFAS). The EPA will continue to add new PFAS, in addition to the three PFAS added in reporting year 2021. The provisions included in the 2020 National Defense Authorization Act (NDAA) automatically add certain PFAS to the TRI chemical list when certain conditions are met. The EPA anticipates more PFAS additions, including perfluorobutane sulfonic acid (PFBS), following its recent publication of a toxicity assessment on the chemical.
TRI reporting for TSCA Work Plan and high-priority chemicals. The EPA plans to propose adding to TRI chemicals in the TSCA Work Plan and substances designated as high-priority substances under TSCA. The agency proposes listing chemicals included in a 2014 petition from the Toxics Use Reduction Institute. According to the EPA, many of these substances could be present in communities close to industrial uses of these chemicals where releases to water, air or land could have a greater impact.
The EPA’s announcement is yet another reflection of its commitment to environmental justice. Consistent with the Biden Administration’s much-publicized claims, the EPA’s reliance upon TRI reporting in this regard is no surprise. Stakeholders can expect more of the same. The report for any calendar year must be submitted on or before July 1 of the following year. The previous Administration sidelined the rulemaking to add natural gas processing facilities to the TRI. How the Biden-Harris EPA will proceed with a four-year-old proposed rule remains unclear. For reporting year 2021 (due by July 1, 2022), the NDAA automatically added three PFAS to the TRI list: perfluorooctyl iodide; potassium perfluorooctanoate; and silver(I) perfluorooctanoate. While the reporting requirements will not take effect immediately, stakeholders should review any proposed and final rules to ensure they remain in compliance.
LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.