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.” EPA plans to expand the scope of TRI reporting requirements to include additional chemicals and facilities, including facilities that are not currently reporting on ethylene oxide (EtO) releases, and provide new tools to make TRI data more accessible to the public. U.S. facilities in different industry sectors must report annually how much of each listed chemical is released to the environment and/or managed through recycling, energy recovery, and treatment.

TRI Facility Expansion to Include Certain Contract Sterilizers Using EtO

EPA states that it “recognizes and shares the public’s concerns about the harmful effects of EtO on human health, including cancer and the environment.” EPA is “committing to broadening TRI reporting” on EtO to include certain contract sterilization facilities that use EtO and that are not currently required to report this information. According to EPA, EtO is used to make other industrial chemicals and is also used to sterilize medical devices.

EPA states that many contract sterilization facilities are located near areas with environmental justice concerns. EPA states that “[w]orkers in facilities that use EtO and communities -- including historically underserved communities -- living adjacent to these facilities are at the highest risks from exposure to EtO.” According to EPA, making more information available about releases of EtO will assist it in identifying and responding to any human health and environmental threats they cause. EPA “will provide more details in upcoming months on its effort to require these contract sterilization facilities to report to TRI and will keep the public informed as next steps are determined.”

Additional TRI Reporting Requirements for Other Chemicals and Sectors

EPA’s announcement intends 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: EPA plans to issue a final rule 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). EPA published a proposed rule on January 6, 2017, following a petition submitted by the Environmental Integrity Project and other organizations. EPA states that adding natural gas processing facilities to TRI would increase the publicly available information on chemical releases and other waste management activities of TRI-listed chemicals from this sector. According to EPA, “[m]illions of people live within 30 miles of at least one natural gas processing facility.” Although EPA issued a proposed rule in January 2017 under the Obama-Biden Administration, the rulemaking has been listed on EPA’s list of inactive regulatory actions since spring 2017, and it is not clear when a final rule will be issued. Once EPA does issue 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): EPA will continue to add new PFAS to TRI, 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. EPA anticipates the automatic addition of more PFAS, including perfluorobutane sulfonic acid (PFBS), following EPA’s recent publication of a toxicity assessment on the chemical. More information on the PFBS toxicity assessment is available in our April 9, 2021, blog item.

• TRI Reporting for TSCA Work Plan and High-Priority Chemicals: EPA plans to propose adding to TRI the chemicals included in the TSCA Work Plan and other substances designated as high-priority substances under TSCA. In addition, EPA plans to propose to list chemicals included in a 2014 petition received from the Toxics Use Reduction Institute. According to EPA, many of these substances could be present in fence-line communities, those communities within close proximity to industrial uses of these chemicals where releases to water, air, or land could have a greater impact.

Additional TRI Tools for Communities

The ability to access and use TRI data empowers communities to make informed health and safety decisions. EPA has taken the following steps to make TRI data more useful and accessible to communities with environmental justice concerns by:

• Enhancing TRI search tools to include a “Demographic Profile” section that displays a map showing information like the income profile and the racial makeup surrounding TRI facilities derived from EJSCREEN. Users can also access demographic data for individual TRI facilities, as well as view a “Community Report” by selecting a facility from the “Facility Comparison Table” in the “Facility Summary” section;

• Launching a Spanish version of the TRI website, making the most popular resources from the English version of the website available in Spanish for the first time and continuing to provide the annual TRI National Analysis in Spanish; and

• Promoting the use of Pollution Prevention (P2) information as a tool for communities to engage with reporting facilities on workable solutions for building community health by encouraging facilities to reduce their use and releases of toxic chemicals, thereby helping to prevent possible exposure to such chemicals. EPA states that reporting on P2 activities “is required by TRI and reveals how facilities can -- and have -- adopted source reduction practices that can lead to meaningful reductions in releases, across a range of industrial sectors.”

Commentary

EPA’s announcement is yet another reflection of EPA’s commitment to environmental justice. Consistent with the Biden Administration’s much-publicized claims, EPA’s reliance upon TRI reporting is no surprise. Indeed, stakeholders can expect more of the same.

Facilities required to report to TRI tend to be larger facilities involved in manufacturing, metal mining, electric power generation, chemical manufacturing, and hazardous waste treatment. In general, facilities that meet all of the following criteria must report:

• The facility has ten or more full-time employee equivalents;

• The facility is included in a North American Industry Classification System (NAICS) code listed at 40 C.F.R. Section 372.23; and

• The facility manufactures (defined by statute to include importing), processes, or otherwise uses any EPCRA Section 313 (TRI) chemical in quantities greater than the established thresholds for the specific chemical in the course of a calendar year.

The report for any calendar year must be submitted on or before July 1 of the following year. In terms of altering reporting obligations, as noted above, it appears that 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 to be seen. For reporting year 2021 (reporting forms 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 described in EPA’s announcement will not take effect immediately, stakeholders should review any proposed and final rules expanding the TRI reporting requirements to ensure they remain in compliance.