As summer nears, environmental compliance efforts turn toward Toxics Release Inventory (TRI) reports, which are due July 1. So far in 2019, the EPA has issued multiple five-digit fines to companies that submitted TRI reports but overlooked a chemical that should have been reported but wasn’t.
One facility failed to report a zinc compound three years in a row and received a penalty of $49,724. For another facility, it was copper that didn’t get reported for two years, and the EPA hit that facility with a $36,515 penalty. A third failed to report tetrachloroethylene and ended up paying $20,500. Facilities may have multiple, even dozens, of chemicals to report, but omitting even one can have significant financial consequences.
Everybody wants to get that report submitted and checked off the “to-do” list, but be sure to do your due diligence and put in the effort and man-hours necessary to properly prepare your TRI report, even if nothing has changed at your facility in the last year.
What Do You Have to Report?
The first step to avoiding such fines is knowing what must be reported. If your facility has at least 10 or more full-time employees and falls within the specified Standard Industrial Classification (SIC) and North American Industry Classification System (NAICS) codes, your TRI report must include each TRI-listed toxic chemical (as listed in 40 CFR 372.65 and 40 CFR 372.28) that is manufactured, processed, or otherwise used in excess of the established thresholds. The thresholds per calendar year are:
- 25,000 pounds (lb) per toxic chemical manufactured or processed, other than persistent, bioaccumulative, and toxic (PBT) chemicals;
- 10,000 lb per toxic chemical for chemicals otherwise used, other than PBT chemicals; and
- As listed in 40 CFR 372.28 for PBT chemicals.
TRI-listed toxic chemicals in mixtures must also be considered when determining if the reporting threshold is exceeded. However, if a toxic chemical is present in a mixture at a concentration below 1% of the mixture, or 0.1% of the mixture if the toxic chemical is a carcinogen, it does not need to be considered when determining if a reporting threshold has been met.
Be aware of the chemical categories on the TRI list. For example, the TRI list includes “Zinc compounds.” This category “includes any unique chemical substance that contains zinc as part of that chemical’s infrastructure.” This is potentially a very large group of listed chemicals, but an electronic search of the TRI list by specific Chemical Abstracts Service (CAS) number or specific chemical name may yield no result, even though the chemical is included in this category.
Also, if you manufacture, process, or use more than one chemical in a listed category, the threshold determinations for that chemical category must aggregate all individual chemicals within the category. The determination is made for the category as a whole, not for each individual chemical.
Stay up to date on newly added chemicals. The EPA periodically adds new chemicals or categories of chemicals to the TRI list. So a chemical you may not have reported in the past may now need to be reported. For instance, as of January 1, 2019, a “Nonylphenol ethoxylates” category, consisting of 13 specific chemicals, has been added to the TRI list and will need to be included for the 2019 reporting year.
Keep up with carcinogen classifications. Carcinogen classifications impact the de minimis mixture concentrations. Periodically, chemicals are reclassified as OSHA carcinogens, which means the de minimis concentration for the chemical in a mixture drops from 1% to 0.1%. So, again, a chemical you may not have reported in the past may now need to be reported or at least reviewed to determine if it must be included in the report. The following nine chemicals were reclassified last year and one (tetrachlorvinphos) this year:
- Methyl isobutyl ketone;
- Sodium pentachlorophenate;
- 1,1,1,2-tetrachloroethane; and
Pay attention to how you rely on the safety data sheet (SDS). Section 2 of the SDS provides complete information on the composition and ingredients of a given substance or product. This information is required and will likely prove very useful in preparing a TRI report. Section 15 of the SDS is for regulatory information, and in many cases, the manufacturer may specify whether the product or specific ingredients are on the TRI list. However, while each SDS is required to have this section, OSHA is not enforcing what specific regulatory information must be provided in Section 15. Therefore, it is not wise to rely on this section for TRI applicability information. Make the determination for yourself.
Avoid complacency. Do not become complacent and say “Nothing has changed at my facility, so I just have to report the same chemicals as last year.” Do your due diligence. Each year, review the chemicals, products, and mixtures being used at the facility, and check SDSs to identify the potentially reportable chemicals. Then dig up the production, usage, and inventory data, and make the necessary threshold determinations.
TRI reports typically require significant preparation time and effort. Determining what must be included in the report, gathering all of the necessary data to complete it, and filing the report requires man-hours, good organizational skills, and comprehensive recordkeeping. There is a lot to keep track of, and things may slip through the cracks, so it is a good idea to conduct regular compliance audits.
If you discover something wrong in your TRI reporting process and you are noncompliant, rectify it rather than hope nobody notices. The EPA recognizes that not all of us are perfect with our TRI and other Emergency Planning and Community Right-to-Know Act (EPCRA) reporting, so the agency established an e-disclosure system that allows facilities to self-report certain EPCRA violations and make corrections without being fined. The e-disclosure portal can be accessed through the EPA’s Central Data Exchange (CDX).
|Register for BLR’s live webinar, Toxics Release Inventory: How to Submit a Complete and Compliant TRI Report by the July 1 Deadline.