U.S. EPA Rescinds the TRI Burden Reduction Rule

On April 27, 2009, U.S. EPA issued a final rule to amend the Toxics Release Inventory (TRI) reporting regulations eligibility criteria for submitting a Form A Certification Statement (Form A) in lieu of the more detailed Form R.  When using Form R, facilities must provide details about releases of chemicals and other waste management practices (i.e., total quantity of releases to air, water, and land; and on- and off-site recycling, treatment, and combustion for energy recovery), while Form A only requires the name of the chemical and facility identification information.  This new rule returns the eligibility for use of Form A to the thresholds and eligibility requirements that were in effect prior to the TRI Burden Reduction Rule that was promulgated in December 2006.  U.S. EPA took this action to comply with the Omnibus Appropriations Act of 2009 enacted on March 11, 2009.

The TRI Burden Reduction Rule had allowed facilities to use Form A in lieu of Form R for TRI-listed persistent bioaccumulative toxic (PBT) chemicals (except dioxin and dioxin-like compounds) when there were no annual releases of the PBT chemical; the facility’s total annual amount of the chemical recycled, combusted for energy recovery, and/or treated for destruction did not exceed 500 pounds; and the facility did not manufacture, process, or otherwise use more than one million pounds of the PBT chemical.  The December 2006 rule also allowed facilities to use Form A in lieu of Form R for a non-PBT chemical when the facility’s total annual reportable amount of the chemical released, recycled, combusted for energy recovery, and/or treated for destruction did not exceed 5,000 pounds; the facility’s total annual releases of the chemical did not exceed 2,000 pounds; and the facility did not manufacture, process, or otherwise use more than one million pounds of the non-PBT chemical.

On March 11, 2009, the Omnibus Appropriations Act of 2009 (Act) was enacted. The pertinent part of the Act reads as follows:

“(1) None of the funds made available by this or any other Act may, hereafter, be used to implement the final rule promulgated by the Administrator of the Environmental Protection Agency entitled ‘Toxics Release Inventory Burden Reduction Final Rule’ (71 Fed. Reg. 76932); and (2) the final rule described in paragraph (1) shall have no force or effect. The affected regulatory text shall revert to what it was before the final rule described in paragraph (1) became effective, until any future action taken by the Administrator.”

Accordingly, the new rule issued on April 27, 2009 modifies 40 CFR §372.27 by eliminating Form A eligibility for PBT chemicals listed at 40 CFR §372.28, and reinstating non-PBT chemical Form A eligibility levels at the 500-pound annual reporting amount and the one million pounds manufactured, processed, or otherwise used threshold that were in effect prior to the December 2006 rule.   All amounts of releases and waste management activities are counted against the 500 pound threshold criterion.

Because the Omnibus Appropriations Act prohibits U.S. EPA from expending any funds to implement the former reporting requirements and mandated that the regulations revert to the prior version, the new rule became effective April 27, 2009, without notice and comment, and affects reports filed for Reporting Year 2008 (due July 1, 2009) and forward.

If a facility submitted a TRI Form A for Reporting Year 2008 on or after March 11, 2009, and still used the 2006 TRI Burden Reduction Final Rule to determine its eligibility for Form A, then the facility must determine whether it is still eligible to file Form A.  If the facility determines that it is no longer eligible to file Form A, then U. S. EPA requires the facility to revise and resubmit its Reporting Year 2008 report on Form R.  Facilities are not permitted to submit a Form A for PBT chemicals.