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Each year about this time, companies are focused on the deadline to submit Toxics Release Inventory (TRI) data to the U.S. Environmental Protection Agency (EPA). This year is no different as the July 1, 2023, deadline is rapidly approaching. By this date, entities subject to the reporting requirement must submit data for activities that occurred during 2022. Companies are required to report if they meet chemical activity thresholds and:
- Are either in a covered industry sector and exceed the employee threshold; or
- Are specifically required to report based on a determination by EPA under the Emergency Planning and Community Right-to-Know Act (EPCRA) Section 313(b)(2).
EPA’s TRI Threshold Screening Tool can help companies determine if they are subject to TRI reporting. The tool uses a step-by-step questionnaire to help companies determine whether they meet or exceed the facility, employee, and chemical thresholds established by EPA.
Aside from reminding our clients and friends of this deadline, The Acta Group (Acta®) wishes to highlight that in 2023, there are several new requirements for submitting information pertaining to the 2022 reporting year. These reporting changes are summarized below.
TRI Reporting for 180 PFAS
For reporting year 2022, the total number of per- and polyfluoroalkyl substances (PFAS) that companies must consider, and in some cases report, has reached 180. On July 18, 2022, EPA issued a final rule updating the regulations to identify five PFAS that must be reported pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA). NDAA provides a framework for more PFAS to be added to TRI for upcoming reporting years. The following four of the five PFAS are reportable as of July 1, 2023:
- Perfluorobutane sulfonic acid (Chemical Abstracts Service Registry Number® (CAS RN®) 375-73-5);
- Potassium perfluorobutane sulfonate (CAS RN 29420-49-3);
- Perfluorobutanesulfonate (CAS RN 45187-15-3); and
- 2-Propenoic acid, 2-methyl-, hexadecyl ester, polymers with 2-hydroxyethyl methacrylate, γ-ω-perfluoro-C10-16-alkyl acrylate and stearyl methacrylate (CAS RN 203743-03-7).
For more information, please see our July 19, 2022, memorandum.
NDAA had automatically added 172 PFAS to the TRI chemical list effective January 1, 2020. The additional four PFAS were added to the TRI list for reporting year 2021 because of these PFAS being added to an existing Significant New Use Rule (SNUR). EPA offers two PFAS-related resources that may assist companies in completing their TRI report: PFAS Reporting Resources, and Addition of Certain PFAS to the TRI by the National Defense Authorization Act.
The manufacturing, processing, and otherwise use reporting thresholds for each of the listed PFAS is 100 pounds. PFAS are listed individually, not as a chemical category. Companies should review each TRI-listed PFAS individually to determine if thresholds are met.
The de minimis exemption is applicable to PFAS and allows companies that would otherwise be required to submit a TRI report to disregard certain minimal levels of PFAS in mixtures or trade name products. All the TRI-listed PFAS have a de minimis level of 1 percent. For perfluorooctanoic acid (PFOA, CAS RN 335-67-1), the de minimis level is 0.1 percent.
Significantly Lower de Minimis Levels for Aniline and Acrolein
Under 40 C.F.R. Section 372.38(a), the de minimis levels for aniline (CAS RN 62-53-3) and acrolein (CAS RN 107-02-8) have been lowered from 1.0 percent to 0.1 percent following the classification of these chemicals as carcinogens in assessments by the International Agency for Research on Cancer. Following this change, more companies are subject to TRI reporting requirements for these substances for reporting year 2022.
Natural Gas Processing Facilities Are Covered by TRI
On November 24, 2021, EPA added natural gas processing (NGP) facilities (also known as natural gas liquid extraction facilities) to the scope of the industrial sectors covered by TRI reporting requirements. 86 Fed. Reg. 66953. EPA noted that adding these facilities will meaningfully increase the information available to the public on releases and other waste management of listed chemicals from the NGP sector and further the purposes of EPCRA. Following this update, companies that were previously not required to report will be required to submit a TRI report by July 1, 2023.
Facilities that primarily recover sulfur from natural gas were already covered by TRI. Facilities primarily engaged in natural gas extraction (e.g., exploration, fracking) are not included in this rule.
Extended TRI Reporting Requirements for Ethylene Oxide
On December 28, 2021, EPA announced that it is expanding the scope of TRI reporting requirements to include certain contract sterilization facilities that were previously not required to report on ethylene oxide releases. 86 Fed. Reg. 73764. EPA has issued a determination extending TRI reporting requirements to 29 facilities for ethylene oxide and to 16 of those facilities for ethylene glycol. If reporting thresholds are met, the facilities must submit TRI data beginning in 2023. More information is available in our December 28, 2021, blog item.
Codified Definition of “Parent Company”
On October 21, 2022, EPA published a final rule to codify the definition of “parent company” for purposes of TRI reporting and to require the reporting of a foreign parent company when applicable. 87 Fed. Reg. 63950. These changes apply beginning with reporting year 2022.
The previous regulation required facilities reporting to TRI to identify their parent company in annual reporting forms. The final rule added a codified definition of this data element. According to EPA, among the facilities reporting to TRI are those with complicated corporate ownership structures. As such, effort is required each year by reporting facilities and EPA to clarify how the parent company data element should be represented on the form. A codified definition of parent company will allow EPA to address various corporate ownership scenarios explicitly and will reduce the reporting burden caused by regulatory uncertainty. The rule clarifies existing requirements to reporting facilities and adds a foreign parent company data element, while improving EPA’s data quality.
Updated List of NAICS Codes
On July 22, 2022, EPA proposed to update the list of North American Industry Classification System (NAICS) codes subject to reporting under TRI to reflect the Office of Management and Budget (OMB) 2022 NAICS code revision. 87 Fed. Reg. 43772. The rule became final on November 28, 2023, and EPA currently implements the 2022 codes for TRI Reporting Year 2022 (i.e., facilities reporting to TRI are required to use 2022 NAICS codes on reports that are due by July 1, 2023). EPA noted that the actual data required by a TRI form will not change because of this rulemaking, nor will the rule affect the universe of TRI reporting facilities that are required to submit reports to EPA under EPCRA.
Commentary
While some of EPA’s updates clarify certain aspects of TRI reporting, such as the updated NAICS codes or the definition of “parent company,” other updates significantly increase the number of facilities that must submit a TRI report or the scope of reporting for reporting year 2022. Many companies that had no prior TRI reporting obligation, such as NGP facilities or certain contract sterilization facilities, must now submit a report by July 1, 2023. TRI reports will be due for chemicals that were previously exempt under the de minimis level, such as aniline and acrolein.
As EPA continues to establish final toxicity values and issue SNURs for PFAS, the list of TRI-reportable PFAS also continues to grow. Companies must review carefully which PFAS are reportable during each reporting year. Depending on how aggressively EPA pursues SNURs on PFAS as a category, hundreds or thousands of PFAS could become reportable. For reporting year 2023 (reporting forms due by July 1, 2024), the NDAA automatically added nine additional PFAS to the TRI list. Facilities in TRI-covered industry sectors should begin tracking and collecting data on these chemicals during 2023.
While all the listed PFAS are subject to the de minimis exemption for reporting year 2022, and companies must not report PFAS under that threshold, this exemption could be eliminated as soon as reporting year 2023. As reported in our December 7, 2022, memorandum, on December 5, 2022, EPA issued a proposed rule that would classify PFAS as “chemicals of special concern” for TRI purposes and would thereby eliminate the de minimis exemptions and require TRI reporting for all listed PFAS, regardless of concentration. The proposal is controversial for many reasons, not the least of which is the fact that trace amounts of PFAS would be reportable even in cases where they were not intentionally added.
There is little time left until the July 1, 2023, deadline. Acta encourages readers who suspect they might be subject to TRI reporting requirements to verify the data available and confirm using the online resources made available by EPA. Acta is also pleased to assist with any questions companies may have regarding TRI reporting.