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Form R Reporting

January 28, 2014 - Kestrel Management

The Emergency Planning Community Right-to-Know Act (EPCRA) was signed into effect in 1986 by President Ronald Regan as Title III of the Superfund Amendments and Reauthorization Act (SARA). The purpose of EPCRA, often referred to as SARA Title III, is twofold. First, the Act creates a means for planning and preparing for chemical emergencies on the state and local level.  Second, the Act creates several reporting obligations for commercial and industrial facilities that would provide more information to citizens and emergency responders about the chemical hazards and releases present in their communities.

Toxic Chemical Release Inventory (TRI)

One of the more onerous reporting obligations is the Toxic Chemical Release Inventory (TRI) Report, promulgated in Section 313 of EPCRA. The TRI report is an annual requirement to report chemical release data (including permitted releases and transfers off site) from applicable industrial facilities.  That data is then compiled by EPA in the national TRI database, a publicly available, searchable inventory of release and transfer information that has been maintained since the reports were first filed in 1988. The database is used not only for helping communities identify their chemical release and exposure risks, but to also track environmental release trends.  All information submitted pursuant to EPCRA regulations is publicly accessible, unless protected by a trade secret claim.

Who Must Report?

EPCRA Section 313 applies to manufacturing facilities that meet the following requirements:

  • Have at least 10 full-time employees;
  • Are classified in select industrial sectors; and
  • Manufacture, process, or use specified chemicals in amounts greater than threshold quantities.

EPA originally identified the select industrial sectors by the four-digit Standard Industrial Classification (SIC) codes. In 2006, the North American Industry Classification System (NAICS), a six-digit code developed by the U.S. Census Bureau, replaced the SIC code designation. It is the full six-digit NAICS code (not the two, three, four, or five digit-code) that determines a facility’s coverage under the TRI Program. A complete list of the NAICS codes subject to reporting in available on the EPA website for TRI Reporting at http://www2.epa.gov/toxics-release-inventory-tri-program.

At present, over 670 chemicals and 30 different chemical categories have been designated Section 313 chemicals. Most 313 chemicals have the following reporting triggers or thresholds:

  • 25,000 lbs/year for 313 chemicals that are manufactured;
  • 25,000 lbs/year for 313 chemicals that are processed; and
  • 10,000 lbs/year for 313 chemicals that are otherwise used.

A select group of 313 chemicals has significantly lower reporting thresholds. These have been identified as persistent, bioaccumulative, and toxic (PBTs), and include dioxin, lead, mercury, and polycyclic aromatic compounds (PACs), among others. The reporting thresholds for PBTs are either 100 pounds, 10 pounds or, in the case of the dioxin and dioxin-like compounds chemical category, 0.1 grams. The list of 313 chemicals is periodically updated; chemicals are added or removed based on new toxicological information.

Facilities that meet the reporting applicability requirements and manufacture, process, or otherwise use 313 chemicals above the reporting thresholds must file TRI reports by July 1 of each year for the previous year. While Section 313 of SARA was not intended to impose restrictions or limitations on the storage or usage of these chemicals, both the time and data management necessary to complete reports and the fact that the reported information is public has caused many organizations to seek alternatives to using 313 chemicals.

Developing a 313 Chemical Inventory

If your facility meets the employee and SIC code applicability requirements, then the next step in determining if you are required to submit TRI reports is to identify which 313 chemicals you manufacture, process, or otherwise use during the reporting year. This step usually entails a detailed review of Safety Data Sheets (SDS), as suppliers are required to report any 313 chemicals in their product at concentrations of 1% or more. PBTs have no concentration limits and must be reported on SDSs if known to exist at any concentration.

Process knowledge is also critical, especially when determining if there are any 313 chemicals that are “manufactured” a byproducts. For each 313 chemical identified, you will need to determine how much of each was manufactured, processed or otherwise used, and compare each to its respective reporting threshold.  Even if no thresholds are exceeded, the rules require that you maintain evidence of the inventory review for a period of three years.

If the inventory reviews show that threshold applicability requirements have been exceeded, then you will need to determine how much of each 313 chemical that exceeds the thresholds has been released to the environment or transferred off site (e.g., fugitive air emissions, stack emissions, onsite and off-site disposal, discharges to surface water or a wastewater treatment plant).

Exemptions

Certain materials are exempt from inclusion in the 313 chemical review. These include “articles,” which are defined by EPA as items that are already manufactured and are formed into a specific shape or design during manufacture, have end-use functions dependent in whole or in part on their shape or design during end-use, and do not release a Section 313 chemical under normal processing or otherwise use conditions at a facility (less than 0.5 lbs/year total released). Of course, the manufacturing of articles is not exempt.

Products used for routine grounds maintenance and janitorial purposes are also exempt. This exemption includes both individually packaged products (e.g., cans of paint) and substances in bulk containers (e.g., 55-gallon drums of paint), provided they are used as the manufacturer intends. Building materials are also exempt but manufacturing equipment maintenance is not.

There is also the “de minimis concentration limitation” exemption, which allows covered facilities to disregard certain minimal concentrations of listed non-PBT chemicals in mixtures or trade name products when making threshold and release/other waste management determinations. The de minimis exemption does not apply to the manufacturer of a listed toxic chemical unless that chemical is manufactured as an impurity and remains below the appropriate minimis level. The de minimis exemption also does not apply to a byproduct manufactured coincidentally as a result of manufacturing, processing, or any waste management activity.

Form R vs. Form A

Completing a TRI report using Form R can be very labor intensive; therefore, the EPA created an alternative, two-page form (Form A) for certain chemicals with low quantities of releases. A Form A report can be submitted in place of a Form R when:

  1. the amount of the 313 chemical manufactured, processed, or otherwise used is less than 1 million pounds, and
  2. the total amount released (referred to as the total annual reportable amount) is less than or equal to 500 pounds.

Beware of these common pitfalls in Form R reporting:

  • Relying on outdated chemical inventory data
  • Not documenting inventory and release calculations, methodologies, estimates, and assumptions
  • Basing reporting threshold determinations on release or transfer quantities
  • Misclassifying chemical activity
  • Not accounting for Form R chemicals in mixtures and trade name products
  • Overlooking coincidental manufacturing
  • Not reporting consistently across similar operations at separate locations

Enforcement

Because TRI data is compiled in an indexed, readily searchable database, agencies and non-governmental organizations (NGOs) can easily detect errors and omissions in reports. These shortfalls or discrepancies are often the result of comparing information reported to other agencies, such as state air emission inventories or biannual hazardous waste reports, with the reported TRI data (or lack thereof).  Additionally, TRI data for facilities within the same industry are often compared to identify discrepancies, so it’s a good idea to understand which TRI compounds are typically reported for your industry.

Failure to report accurately can carry stiff penalties, currently in the amount of $37,500 per day per violation. In addition, your organization may become the subject of a citizen or NGO suit and could be found liable for attorney fees and litigation costs.  If you think you may be subject to the EPCRA TRI Reporting requirements and have not filed reports, consider contacting legal counsel and evaluating your reporting obligations as soon as possible.

Submitted by: Sarah Burton

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