Odds are you have heard the phrase "TRI" or "Form R" and know that it refers to reporting releases of toxic chemicals. However, you may not know how or if your facility is affected, or the potential harm if your report isn't prepared properly. Under the federal Emergency Planning and Community Right-to-Know Act (EPCRA), facilities may be required to submit Toxic Release Inventory (TRI) reports to the Environmental Protection Agency (EPA), that disclose the amount of toxic chemicals released by the facility to air, land, and water, and documenting how these chemical releases are treated and managed. Once submitted to EPA, the data become available to the general public.

The TRI tracks the use, creation, and management of over 650 toxic chemicals and chemical compound categories that pose a threat to human health and the environment (the full list is provided in 40 CFR 372.65). U.S. facilities in certain industry sectors that "manufacture, process, or otherwise use" these chemicals in amounts exceeding established thresholds must report annually on the amount of each chemical released into the environment via any route and/or managed through recycling, energy recovery, and treatment. A "release" of a chemical means that it is emitted to the air or water, or placed into some type of land disposal.

TRI facilities are legally required to report by July 1 of each year covering the previous calendar or reporting year. The information submitted by facilities to EPA and the states is compiled and stored in a publicly accessible database on the EPA Envirofacts website (www.epa.gov/enviro). TRI data are available for all facilities that have submitted reporting forms since the program began in 1987.

The reporting process for many facilities may be long and convoluted. Although the TRI program has been around for 30 years, EPA's expectations have evolved significantly in recent years and the agency's FAQs and guidance documents can be confusing. This makes it surprisingly easy to make mistakes, especially if relying on spreadsheet templates that have not been kept current with the latest developments or that may have been inaccurate from the start. Given EPA's current focus on toxic chemical releases and enforcement, and increasing activity from class action lawsuits, this is a report that facilities really need to get right.

Who Must Report?

EPCRA requires facilities covered by one of the six-digit North American Industry Classification System (NAICS) codes listed below to report under the TRI program.

  • 212 Mining
  • 221 Utilities
  • 31 - 33 Manufacturing
  • All Other Miscellaneous Manufacturing (includes 1119, 1131, 2111, 4883, 5417, 8114)
  • 424 Merchant Wholesalers, Non-durable Goods
  • 425 Wholesale Electronic Markets and Agents Brokers
  • 511, 512, 519 Publishing
  • 562 Hazardous Waste
  • Federal Facilities

TRI Reporting Steps

Outlined below are the steps that should be followed in preparing your disclosure forms (usually TRI Form R or, if certain conditions are met, the TRI Form A Certification Statement).

  1. Determine the applicability of the TRI report to your facility.
    • Confirm the facility's NAICS code is a TRI-covered industry.
    • Confirm the facility employs 10 or more full-time equivalent employees (20,000 equivalent hours that include part-time staff, most contractors, and off-site support staff).
    • Confirm the facility manufactures, processes, or otherwise uses TRI chemicals.
  2. Perform and document Threshold Determinations for each TRI chemical that can be present at your facility.
  3. Characterize all releases and waste management activities for any TRI chemicals that are manufactured, processed, or otherwise used in exceedance of the reporting thresholds for that chemical.
  4. Register for a Central Data Exchange (CDX) user account if you have not previously done so, and establish an electronic signature agreement (ESA).
  5. Complete the TRI forms using TRI-MEweb.
  6. Submit your facility's TRI reporting form(s) by July 1 of each year for the previous calendar year's activities.

No additional monitoring or measurement of the quantities or concentrations of any TRI chemical released into the environment beyond that required by another law or regulation or as part of routine plant operations, is required to be performed for the purpose of completing Form R. Note, however, that although EPA does not require a facility to perform any additional sampling in order to prepare the TRI report, the lack of analytical data does not justify choosing not to report a chemical release to a media. EPA expects facilities to use the best readily available data (including monitoring data) to prepare the report - where such data are not readily available, "reasonable estimates" of the amounts involved must be used.

The final step is to verify the information submitted for your facility using the electronic facility data profile (eFDP) functionality within TRI-MEweb (see Figure 1). (Once EPA makes the data public, you can also view them in Envirofacts.)

TRI_Figure 1

Recent TRI Reporting Updates

EPA recently made several changes to the reporting requirements that may affect how your facility should complete its report.

  • A nonylphenol ethoxylates (NPEs) category was added to the TRI chemical list in June 2018. Reporting forms on NPEs are due July 1, 2020, for 2019 data.
  • Facilities must now indicate if they are filing a combined form for an elemental metal and a metal compound.
  • Activities and uses of the TRI chemical section on Form R now require a facility to indicate more specific subcategories for certain processing and otherwise use activities.
  • Recycling is now an activity under processing in Part II, Section 3.2.
  • New management codes were added for transfers of waste to POTWs for Part II, Section 6.1 reporting.

Additionally, EPA has updated almost all of its chemical/category-specific TRI guidance documents, as listed below.

  1. Aqueous Ammonia (revised March 2019)
  2. Certain Glycol Ethers Category (revised March 2019)
  3. Chlorophenols Category (revised February 2019)
  4. Compounds and Mixtures (NEW - online version only; no PDF)
  5. Dioxin and Dioxin-like Compounds Category (revised March 2019)
  6. EBDC Acid, Salts and Esters Category and Mixtures Containing Maneb, Metiram, Nabam, and Zineb (revised February 2019)
  7. Hydrochloric Acid Aerosols (revised February 2019)
  8. Lead and Lead Compounds (revised March 2019)
  9. Mercury and Mercury Compounds Category (revised February 2019)
  10. Nicotine and Salts (revised February 2019)
  11. Nitrate Compounds (revised February 2019)
  12. Pesticides and Other Persistent Bioaccumulative Toxic (PBT) Chemicals (revised February 2019)
  13. Polychlorinated Alkanes Category (revised February 2019)
  14. Polychlorinated Biphenyls (PCBs) (NEW - online version only; no PDF)
  15. Polycyclic Aromatic Compounds (revised February 2019)
  16. Strychnine and Salts (revised February 2019)
  17. Sulfuric Acid Aerosols (revised February 2019)
  18. Toxic Chemical Categories (NEW - online version only; no PDF)
  19. Warfarin and Salts (revised February 2019)

EPA is still working on finalizing some other Form R reporting changes. Further information about TRI reporting requirements is provided in the Reporting Forms and Instructions manual for Reporting Year 2018 (Figure 2.), which is available for download at http://www.epa.gov/toxics-release-inventory-tri-program/reporting-tri-facilities.

TRI_Figure 2

Common Problems in TRI Reporting

Noted below are a few common problems that EPA has reported with TRI submittals.

  • Not estimating releases, entering each environmental media, or considering offsite transfers. For example:
    • Checking fugitive air emissions as "NA" (not applicable) when the TRI chemical is a VOC.
    • Not considering stormwater as a release pathway when there are air emissions of solids containing TRI chemicals handled at the site.
  • Failing to identify all categories of chemical use or reporting only those that exceed the reporting threshold. For example:
    • TRI chemical used for, or manufactured via combustion or natural means.
  • Not considering the sum of all compounds in the compound category.
  • Not identifying all waste treatment or disposal methods employed. For example:
    • Are there any molecules of the TRI chemical in the wastewater sludge or in any other solid waste stream?
    • Have all container residues been considered? "Empty" as defined under the Resource Conservation Recovery Act (RCRA) is not the same as "empty" under EPCRA. Proper reporting of container residues, including tanker trucks and railcars, requires careful review. "NA" should be used only when there is no possibility of the TRI chemical being released to or otherwise managed as waste in that media.
  • Misusing the article and de minimis exemptions. For example:
    • It is quite easy to lose or invalidate the article exemption, such as by many cutting operations.
    • The de minimis exemption does not automatically apply to chemicals that straddle the de minimis concentration.
  • Not considering repackaging activities, especially waste streams that are sold or given away.
  • Omitting contractor chemicals or various types of maintenance repairs and other "one off" activities, such as catalyst or refractory replacement, construction, and asphalting.
  • Not considering the presence of PBT chemicals. Although suppliers are not required to notify you of the presence of PBTs below the de minimis concentration, PBTs must still be considered. PBT chemicals are present in petroleum products and in most "earth-based materials," such as lime, limestone, wood, asphalt, and diatomaceous earth.
  • Using an incorrect Basis of Estimate code. There are six codes to choose from, but only one can be used. Although more than one code is quite often relevant to how the reported value was determined, the code for the method used to estimate the largest portion of the release should be listed.
  • Using one production or activity ratio for all TRI chemicals reported. The correct value is a ratio of production or activity involving the TRI chemical in the reporting year to production or activity involving the TRI chemical in the previous year.

TRI Deadline

EPA Scrutiny

The EPA Office of Pollution Prevention and Toxics processes raw TRI reports to create the Risk Screening Environmental Indicators (RSEI) score. EPA combines the following three variables to assess the human health risks posed by toxic releases:

  • Fate and transport (how the chemical spreads from the point of release to the surrounding area);
  • Toxicity (how dangerous the chemical is on a per-pound basis); and
  • Population (how many people live in the affected areas).

The RSEI score is a unit less number calculated as the product of the estimated dose (estimated through media-specific modeling), the higher of the cancer/noncancer toxicity weight for each pathway, and the number of potentially exposed people. Federal, state, and local officials, and academics and other analysts, use RSEI for several purposes:

  • Industry sector- and facility-based targeting for further investigation and strategic planning,
  • Analysis of trends,
  • Impact of regulations on cross-media risk transfers,
  • Environmental justice issues; and
  • Prioritization for community-based environmental protection.

RSEI scores are relative, which means that an RSEI score that is 10 times higher for Facility A than the score for Facility B suggests that the potential for risk is 10 times greater for Facility A. RSEI scores that are high for industries in a particular community or state, or are high versus competitors, put the facility at risk for review by EPA.

Scrutiny by Citizens and Environmental Groups

The Political Economy Research Institute (PERI) at the University of Massachusetts Amherst runs a Corporate Toxics Information Project that develops and disseminates information on corporate releases of pollutants and the consequences for communities. The Project provides interested parties the ability to obtain toxic chemical release data, RSEI scores, and environmental justice data for almost any company in the U.S. In addition, PERI issues a list every year of the top 100 air polluters and the top 100 water polluters based on the RSEI score. And PERI is just one of many nongovernmental organizations that makes TRI data publicly available to compel companies to reduce their toxic chemical releases.Citizens and environmental groups have used publicly available toxic release data as a basis for legal action against facilities. For example, Trinity provided technical support to the defendant in a recent class action lawsuit, highlights of which are noted below.

  • The plaintiff class claimed that the company did not follow industry-accepted standards of care for release of hazardous air pollutants, and thus constituted a nuisance, negligent operation, and trespass of the plaintiff's property.
  • The plaintiff's basis for its argument regarding industry-accepted standards of care included a comparison of the data reported by the defendant in its annual air emissions reports and TRI reports vs. its competitors' data.
  • The plaintiff class was seeking more than $200 million, but settled for $45 million.

Conclusion

It is easy to prepare an inaccurate TRI report due to the complexities of the reporting process, and there is a significant risk to doing so as TRI reporting is under increasing scrutiny by both regulators and the general public. The company's image is on the line, as are bottom-line financial impacts. Over-reporting brings the risk of agency investigations, bad press, and citizen suits, but under-reporting also poses an increased risk of scrutiny. This is a report facilities must get right the first time!