The term “TRI back reporting” refers to revising or correcting previous Toxic Release Inventory (TRI) reports required by Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA). The term “revisions” in this context, refers to changes that improve the accuracy of the data initially reported because of previously unavailable information or procedures. Similarly, the term, “corrections” in this context, refers to any other changes to the reporting that do not meet the definition of revision. Said differently, revisions imply it was impossible to submit the revised data at the time the initial TRI report was prepared, whereas TRI corrections indicate the facility filed an incomplete or inaccurate TRI report (i.e., there was an error).
While revisions do not typically result in EPA enforcement action, EPA commonly addresses corrections with monetary penalties. EPA established a self-disclosure policy to encourage facilities to voluntarily discover and fix violations of federal environmental laws and regulations, including EPCRA and associated TRI reporting requirements. This policy allows for significant penalty reductions for qualifying facilities. This article examines the differences between TRI revisions and corrections, and how facilities can take advantage of EPA's self-disclosure policy for TRI back reporting assessments.
Revisions vs. Corrections
EPA does not provide a comprehensive list of changes that constitute revisions under the TRI program; rather, EPA emphasizes that revisions are based on previously unavailable information or procedural changes that improve the accuracy of the data. EPA states that revisions should be submitted as soon as possible to ensure any potential data quality issues are resolved and the facility's desired data are reflected in the public database as soon as possible (EPA Q&A #822).
The primary benefit for revising previous TRI reports is to ensure that EPA and third parties are using a facility's data correctly in their toxic release assessments. EPA's toxic screening program (including the Risk Screening Environmental Indicators (RSEI) scoring procedure) and potential scrutiny that a facility may receive from citizens or environmental groups were examined in an online article, Chemical Reporting and Compliance Basics: Many Changes to Manage, TRI Reporting Updates(May 2020).
As TRI corrections are enforceable, significantly more EPA guidance exists for defining enforceable errors. Pages iii, 1, and 8 of EPA's Toxic Chemical Release Inventory Reporting Forms and Instructions (Revised 2019 Version) describe four kinds of errors which may result in enforcement actions and in penalties:
- Errors caused by not using the most readily available information; for example, not using monitoring data collected for compliance or other purposes with other regulations in calculating releases
- Omitting a major source of emissions
- A mathematical or transcription or typographical error which seriously compromises the accuracy of the information
- Other errors which seriously affect the utility of the data, particularly errors in release reporting for which the facility has no records showing the derivation of the release calculation, and cannot provide a sufficient explanation of the report
Further, EPA's Enforcement Response Policy for Section 313 of the Emergency Planning and Community Right-to-Know Act (1986) and Section 6607 of the Pollution Prevention Act (1990) [Amended 1996, 1997, 2001, and 2017] details circumstances that may result in civil administrative actions and EPA's policy for determining associated penalties. EPA describes six scenarios that may result in enforcement actions:
- Failure to report in a timely manner
- Data quality errors
- Failure to respond to a Notice of Noncompliance (NON)
- Repeat violations
- Failure to provide supplier notification, and incomplete or inaccurate supplier notification
- Failure to maintain records and failure to maintain records according to a standard in the regulation
EPA also details actions that constitute data quality errors and significant release estimation errors for non-PBT chemicals, see Figure 1, that require a facility to correct previous TRI submittals:
- Failure to calculate or provide reasonable estimates of releases or off-site transfers
- Failure to identify all appropriate categories of chemical use, resulting in error(s) in estimates of release or offsite transfers
- Failure to identify for each waste stream the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such methods, for that waste stream
- Failure to use all readily available information necessary to calculate as accurately as possible, releases or off-site transfers
- Failure to provide the annual quantity of the toxic chemical which entered each environmental medium
- Failure to provide the annual quantity of the toxic chemical transferred off-site
- Failure to provide information required by §6607 of the Pollution Prevention Act of 1990 and by any regulations promulgated under §6607 of the Pollution Prevention Act of 1990
- Under the requirements of §6607 of the Pollution Prevention Act of 1990, claiming past or current year source reduction or recycling activities which are not in fact implemented by the facility. This does not apply to activities which the facility may estimate for future years
- A facility's Form R reporting demonstrates a pattern of similar errors or omissions as manifested by the issuance by EPA of NONs tor two or more reporting years tor the same or similar errors or omissions
Collectively, EPA's TRI reporting instructions and Enforcement Response Policy provide insight into what qualifies as a correction to a previous TRI report. The guidance suggests that essentially any change that is not administrative in nature (e.g., public contact information, facility address, etc.) and is not the result of previously unavailable information or changes to procedures that improve the accuracy of the data ultimately qualify as a TRI correction and may be enforceable.
Trinity identified common problems in TRI Reporting in anticipation of the 2019 TRI report that provides examples of errors that trigger TRI back reporting.
EPA's Self-Disclosure Policy
EPA's Self-Disclosure Policy (formally referred to as Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations) outlines the procedures for facilities to voluntarily discover, disclose, correct, and prevent violation of Federal environmental laws and regulations, including EPCRA and TRI reporting requirements. On May 15, 2018, EPA announced a renewed emphasis on encouraging facilities to pursue the Self-Disclosure Policy, highlighting the following elements of the policy:
- EPA implemented the eDisclosure online reporting system on December 9, 2015 to automatically process self-disclosed civil environmental violations
- EPA saw an increase of more than 75% in the number of annual self-disclosures in the first two years after the launch of eDisclosure
- EPCRA disclosures (including TRI Reporting) represented 57% of the total disclosures during the first two years of the online program
- On August 1, 2008, EPA published the Interim Approach to Applying the Audit Policy to New Owners which provides additional flexibility to new owners who self-disclose violations
- EPA announced it was in the process of developing a New Owner Clean Air Act Audit Program specifically for the oil and natural gas sector. EPA finalized this program on March 29, 2019.
Benefits of Self-Disclosure
EPA's Enforcement Response Policy states that penalties assessed on or after January 15, 2017, for violations that occurred after November 2, 2015, are subject to a statutory maximum penalty of $54,789 per violation per day. The primary incentive for pursuing the Self-Disclosure Policy is reducing civil penalties as follows:
- Reduction of 100% of gravity-based penalties if all nine of the policy's conditions are met. EPA retains its discretion to collect any economic benefit that may have been realized as a result of noncompliance.
- As of May 15, 2018, EPA had received over 10,500 disclosures and sought to recover the economic benefit component in less than 1% of the disclosures
- Reduction of gravity-based penalties by 75% where the disclosing entity meets all of the policy's conditions except detection of the violation through a systematic discovery process
Policy Conditions for Self-Disclosure
The nine audit policy conditions, as summarized by EPA, include:
- Systematic discovery of the violation through an environmental audit or the implementation of a compliance management system
- "Environmental Audit" is a systematic, documented, periodic and objective review by regulated entities of facility operations and practices related to meeting environmental requirements
- "Compliance Management System" encompasses the regulated entity's documented systematic efforts, appropriate to the size and nature of its business, to prevent, detect and correct violations through a variety of mechanisms (see Section II.B of EPA's Self-Disclosure Policy for the full definition)
- Voluntary discovery of the violation was not detected as a result of a legally required monitoring, sampling or auditing procedure
- Prompt disclosure in writing to EPA within 21 days of discovery or such shorter time as may be required by law. Discovery occurs when any officer, director, employee, or agent of the facility has an objectively reasonable basis for believing that a violation has or may have occurred.
- Independent discovery and disclosure before EPA or another regulator would likely have identified the violation through its own investigation or based on information provided by a third-party
- Correction and remediation within 60 calendar days, in most cases, from the date of discovery
- Prevention of recurrence of the violation
- Repeat violations are ineligible (i.e., the specific (or closely related) violations have occurred at the same facility within the past 3 years or those that have occurred as part of a pattern at multiple facilities owned or operated by the same entity within the past 5 years); if the facility has been newly acquired, the existence of a violation prior to acquisition does not trigger the repeat violations exclusion.
- Certain types of violations are ineligible such as those that result in serious actual harm, those that may have presented an imminent and substantial endangerment, and those that violate the specific terms of an administrative or judicial order or consent agreement
- Cooperation by the disclosing entity is required
All self-disclosed violations pursuant to EPA's Self Disclosure Policy must be submitted through EPA's eDisclosure program (an electronic reporting program within EPA's Central Data Exchange (CDX) portal), with the exception of new owner disclosures. EPA currently allows for two categories of disclosures:
- Category 1 disclosures (100% gravity-based penalty mitigation)
- i. Violations of EPCRA (including TRI violations) that meet all nine audit policy conditions
- ii. EPCRA violations that meet all Small Business Compliance Policy conditions (generally applicable to businesses with 100 or fewer employees)
- Does Not Include:
- i. Chemical release reporting violations under section 304 of EPCRA or section 103 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)commonly referred to as “Reportable Quantity releases”
- ii. Violations of EPCRA with significant economic benefit as defined by EPA
- Category 2 disclosures (75% gravity-based penalty mitigation) include:
- All non-EPCRA violations
- EPCRA violations where the discloser can only certify compliance with audit policy conditions 2-9 (i.e., discovery was not systematic)
- EPCRA and CERCLA violations excluded from Category 1 above
TRI report corrections qualify for a Category 1 disclosure assuming that all nine audit policy conditions are met, including systematic discovery. Common examples of “systematic discovery” for TRI reporting include conducting third party audits of a facility's TRI program that typically require developing a new or revised calculation procedure for both the threshold determination and the release and waste transfer determination.
Category 1 disclosures are frequently associated with discovering errors in existing TRI calculation workbooks due to inaccurate data, conversion factors, formulas, or assumptions, or incomplete data. Where a spreadsheet error is suspected but not confirmed, seeking outside expert assistance to audit or prepare a new TRI compliance management tool can be the difference in qualifying for a Category 1 disclosure (100% penalty mitigation) rather than a Category 2 disclosure (75% penalty mitigation).
There are four key concepts and deadlines associated with pursuing an eDisclosure for a TRI back reporting effort:
- “Discovery Date” - this is date that the facility has discovered there was a violation for reporting
- “Voluntary Disclosure” - due within 21 days of “Discovery Date”; this is submitted via EPA's eDisclosure program through the online CDX program.
- Submittal of corrected TRI Reports within TRI-MEweb - back reporting is due within 60 days of the “Discovery Date”
- “Compliance Certification” - due within 60 days (most cases) of the “Voluntary Disclosure”; this is also submitted in EPA's eDisclosure program.
Defining the discovery date is critical as all other deadlines for reporting are either directly or indirectly established by the discovery date. The 60-day timeline for correcting and submitting the TRI reports is the most challenging deadline, especially if TRI corrections are triggered for reports dating back five years. Close coordination between all involved parties (facility staff, corporate staff, consultants, legal counsel, etc.) is key for successful TRI back reporting and eDisclosure projects.
Recordkeeping plays a Critical Role in TRI Back Reporting
TRI records must be retained for at least three years from the submission date of a TRI report pursuant to 40 CFR 372.10(a); however, the statute of limitation for EPA to file an EPCRA enforcement case is five years ( 28 U.S.C. 2462). Therefore, facilities are encouraged to complete up to five years of back reporting if a facility discovers a TRI error.
This creates a unique challenge in that historical records may be difficult to locate or understand depending on the circumstances for the facility (staff changes, changes to recordkeeping practices, etc.). Recall that “TRI revisions” are based on previously unavailable information or procedural changes that improve the accuracy of the data; good recordkeeping practices can be the difference in defining a TRI report change as either a revision (typically not enforced) or correction (enforceable and subject to penalties).
EPA states that sound recordkeeping practices are essential for accurate and efficient TRI reporting. Page 8 of EPA's Toxic Chemical Release Inventory Reporting Forms and Instructions (Revised 2019 Version) states the following records should be maintained for TRI reporting. (Note that this list is not necessarily comprehensive as each facility is unique. Recordkeeping needs may vary significantly depending on a facility's operation).
- Previous years' EPCRA Section 313 reports
- EPCRA Section 313 Reporting Threshold Worksheets
- Engineering calculations and other notes
- Purchase records from suppliers
- Inventory data
- EPA (NPDES) permits and monitoring reports
- EPCRA Section 312 Tier II Reports
- Monitoring records
- Flowmeter data
- RCRA Hazardous Waste Generator's Report
- Pretreatment reports filed by the facility with the local government
- Invoices from waste management companies
- Manufacturer's estimates of treatment efficiencies
- RCRA manifests
- Process diagrams that indicate emissions and other releases
- Records for those EPCRA Section 313 chemicals for which they did not file EPCRA Section 313 reports
- CDX account information including unique access key to pre-load facility account into TRI-MEweb and copies of the Electronic Signature Agreement (s) submitted to EPA for approval
TRI reports are challenging to prepare and highly visible. TRI back reporting is becoming commonplace as EPA and third-party scrutiny of TRI data continues to rise. EPA remains committed to improving its technology for publishing and analyzing TRI data.
The focus on TRI reporting is highlighted through EPA's recent updates to guidance documents, addition of chemicals to the TRI list, new TRI search engine to navigate submitted data, and advanced procedures for flagging suspicious reporting data within TRI-MEweb (e.g., automated error checking prior to form submittals, automated Data Quality Questions, etc.).
EPA's self-disclosure policy provides an exceptional opportunity to correct previous TRI reports while avoiding associated penalties for previously filing inaccurate or incomplete TRI reports. This complex analysis may require significant attention and time from responsible staff, but it is ultimately worth consideration given the enforcement mitigation options available for responsible self-disclosure and overall responsibility for correctly representing TRI data to EPA, interested third-parties, and the public.
For assistance with TRI Back Reporting, please contact the authors or call 800.229.6655.