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Copyright 2023 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
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Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and EPA regulation 40 CFR Part 372 set up the Toxics Release Inventory (TRI). The TRI program tracks the management of certain toxic chemicals that pose a cancer or other chronic human health effects, significant adverse acute human health effects, or significant adverse environmental effects.
Facilities in certain industry sectors must annually report how much of each chemical they managed through recycling, energy recovery, treatment, and environmental releases. TRI reporting forms must be submitted to EPA and the appropriate state or tribe by July 1 of each year. These forms cover environmental releases and other management of toxic chemicals that occurred during the previous calendar year.
The information submitted by facilities is compiled in the TRI and made freely available online to the public. The goal of TRI is to empower citizens, through information, to hold companies and local governments accountable in terms of how toxic chemicals are managed. The data often spurs facilities to focus on their chemical management practices. The same data also serve as a rough indicator of environmental progress over time.
Scope
If a facility meets all four of the criteria below, it must report for each chemical for which the reporting requirement is triggered (unless the facility is otherwise exempted under 372.38):
- Employs 10 or more full-time equivalent employees. A full-time employee is defined as 2,000 work hours per year.
- Is in a covered industry sector (e.g., manufacturing, mining, electric power generation, etc.) listed at 372.23 or the facility is a federal facility*.
- Manufactures, processes, or otherwise uses a chemical or chemical category (listed at 372.65).
- Exceeds the threshold levels (listed at 372.25, .27, .28, and .29) in a given year.
Regulatory citations
- 40 CFR 372 — Toxic chemical release reporting: Community right-to-know
- 42 U.S.C. 11023 — Toxic chemical release forms
- 42 U.S.C. 11048 — Regulations
Key definitions
- Article: A manufactured item: (1) Which is formed to a specific shape or design during manufacture; (2) which has end use functions dependent in whole or in part upon its shape or design during end use; and (3) which does not release a toxic chemical under normal conditions of processing or use of that item at the facility or establishments.
- Disposal: Any underground injection, placement in landfills/surface impoundments, land treatment, or other intentional land disposal.
- Establishment: An economic unit, generally at a single physical location, where business is conducted or where services or industrial operations are performed.
- Facility: All buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with such person). A facility may contain more than one establishment.
- Full-time employee: An employee who works 2,000 hours per year of full-time equivalent employment. A facility would calculate the number of full-time employees by totaling the hours worked during the calendar year by all employees, including contract employees, and dividing that total by 2,000 hours.
- Import: To cause a chemical to be imported into the customs territory of the United States. For purposes of this definition, to cause means to intend that the chemical be imported and to control the identity of the imported chemical and the amount to be imported.
- Manufacture: To produce, prepare, import, or compound a toxic chemical. Manufacture also applies to a toxic chemical that is produced coincidentally during the manufacture, processing, use, or disposal of another chemical or mixture of chemicals, including a toxic chemical that is separated from that other chemical or mixture of chemicals as a byproduct, and a toxic chemical that remains in that other chemical or mixture of chemicals as an impurity.
- Mixture: Any combination of two or more chemicals, if the combination is not, in whole or in part, the result of a chemical reaction. However, if the combination was produced by a chemical reaction but could have been produced without a chemical reaction, it is also treated as a mixture. A mixture also includes any combination which consists of a chemical and associated impurities.
- Otherwise use: Any use of a toxic chemical, including a toxic chemical contained in a mixture or other trade name product or waste, that is not covered by the terms “manufacture” or “process.” Otherwise use of a toxic chemical does not include disposal, stabilization (without subsequent distribution in commerce), or treatment for destruction unless: (1) The toxic chemical that was disposed, stabilized, or treated for destruction was received from off-site for the purposes of further waste management; or (2) The toxic chemical that was disposed, stabilized, or treated for destruction was manufactured as a result of waste management activities on materials received from off-site for the purposes of further waste management activities. Relabeling or redistributing of the toxic chemical where no repackaging of the toxic chemical occurs does not constitute otherwise use or processing of the toxic chemical.
- Process: The preparation of a toxic chemical, after its manufacture, for distribution in commerce: (1) In the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance, or (2) As part of an article containing the toxic chemical. Process also applies to the processing of a toxic chemical contained in a mixture or trade name product.
- Release: Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles) of any toxic chemical.
- Supplier notification: The notification provided to customers from suppliers of mixtures or trade name products containing one or more of the listed chemicals under EPCRA Section 313 or EPA 372.65. This notification helps TRI reporters know the toxic chemical composition of the products they use, to be able to calculate releases accurately.
- Toxic chemical: A chemical or chemical category listed in 372.65.
Summary of requirements
- Determine if the facility must file an accurate and complete TRI report to federal EPA and the designated SERC or TERC. Ask these questions:
- Does the facility have 10 or more full-time equivalent employees?
- Is the facility in a covered industry sector or is it a federal facility?
- Does the facility have a listed chemical or chemical category?
- Did the listed chemical/category exceed its manufacturing, processing, and/or otherwise use threshold in the preceding calendar year? Consider all activities and information sources when making a threshold determination.
- Is the listed chemical/category or activity not exempted at 372.38?
- If the facility meets the TRI reporting criteria, then:
- Submit to federal EPA and the designated SERC or TERC, the required form on or before July 1 to cover the preceding calendar year. If the reporting deadline falls on a Saturday or Sunday, EPA will accept the forms which are postmarked on the following Monday (i.e., the next business day).
- Submit Form A (if preferred by the facility over Form R), if:
- The chemical or chemical category is NOT identified as persistent, bioaccumulative, and toxic (PBT); and
- The amount manufactured or processed or otherwise used is less than or equal to 1,000,000 pounds; and
- The reportable amount (the total when adding Sections 8.1-8.7, Column B of Form R) does not exceed 500 pounds per year.
- Submit Form R if the facility is not eligible to submit Form A or the facility prefers to submit Form R.
- Submit Form R or Form A and trade secret substantiation forms in paper format if the facility will claim the chemical or chemical category a trade secret.
- Submit the Form R or Form A electronically via TRI-MEweb, if a trade secret is not claimed. Conveniently, TRI-MEweb will simultaneously send a copy of each reporting form submitted to EPA to the appropriate SERC or TERC if the state or tribe participates in the TRI Data Exchange (TDX). This simultaneous submission satisfies a facility’s legal obligation to report to EPA and the appropriate state or tribe. However, if a state or tribe is not participating in TDX, the facility must submit a copy of each reporting form sent to EPA to the SERC or TERC in which that facility is located.
- Electronically submit any revisions or withdrawals of previously submitted TRI reporting forms using TRI-MEweb, unless a trade secret is claimed, in which case revisions and withdrawals may be submitted on paper.
- Retain the records listed at 372.10 for three years from the date of the submission of a report. However, since EPCRA has a five-year statute of limitations, it is recommended that a facility keep the records for five years.
- If the facility does not meet the TRI reporting criteria (but has in the past), consider providing voluntary information to EPA via TRI-MEweb about the reason the facility is not reporting to EPA, to avoid future auditing.
- Determine if you own or operate a facility that meets the criteria to be covered by the supplier notification requirement, per 372.45. If covered by the supplier notification requirement:
- Check to see if your mixture or trade name product is exempted at 372.45(d).
- Consider the chemical name or the specific concentration of the EPCRA Section 313 chemical in a mixture or other trade name product to be a trade secret, if you meet 372.45(e) and (f) and you have documentation that provides the basis for your claim.
- If the mixture or trade name product is not exempted, ensure the supplier notification includes the required information for the mixture or trade name product.
- Provide the supplier notification in writing. If you are required to prepare and distribute a safety data sheet (SDS) for the mixture under OSHA 29 CFR 1910.1200, then your supplier notification must be attached to the SDS or the SDS must be modified to include the required information.
- Notify each customer receiving a mixture or other trade name product containing a Section 313 chemical with the first shipment of each calendar year. Once customers have been provided with an SDS containing the Section 313 information, you may refer to the SDS by a written letter in subsequent years (as long as the SDS is current).
- Send a new or revised notification within 30 days of a change in the product or the discovery of misidentified EPCRA Section 313 chemical(s) in the mixture or incorrect percentages by weight.
- Watch EPCRA Section 313 and 40 CFR 372.65 for any newly added chemicals. If a chemical is added, notify your customers with the first shipment made during the next calendar year following EPA’s final decision to add the chemical to the list.
- Retain the records specified at 372.10(b) for a period of three years from the date of the submission of a supplier notification.
- If your facility receives supplier notifications from your suppliers about EPCRA Section 313 chemicals in mixtures or other trade name products, forward the notifications with the EPCRA Section 313 chemicals you send to other covered users.
READ MORESHOW LESS
['CERCLA, SARA, EPCRA']
['SARA Compliance', 'Toxic/Hazardous Substance Releases', 'Toxics Release Inventory Reporting', 'EPCRA Trade Secrets', 'Community Right to Know']
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