In response to a petition filed under the Emergency Planning and Community Right-to-Know Act (“EPCRA”), EPA is adding 12 chemicals to the list of toxic chemicals subject to annual reporting under EPCRA and the Pollution Prevention Act (PPA). 87 Fed. Reg. 73475 (November 30, 2022). The preamble to this final rule states the new toxic chemical listing is the result of an EPA finding that “each of the 12 chemicals meets the EPCRA criteria . . . [and] one chemical should be classified as a persistent, bioaccumulative, and toxic (PBT) chemical and designated as a chemical of special concern with a 100-pound reporting threshold.” Id.
EPCRA Reporting
Section 313 of EPCRA, 42 U.S.C. 11023 (also known as the Toxics Release Inventory (“TRI”), requires owners and operators of certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels (25,000 lbs.--manufacturing or processing/10,000 lbs.--otherwise use) to file annual reports with EPA. 40 CFR § 372.25. These facilities also have to report “pollution prevention” and “recycling data” for the covered chemicals under the PPA, 42 U.S.C. §13106. The annual TRI report is due July 1 each year. When the EPCRA program became effective in 1985, the list of TRI “toxic chemicals” included only 308 individually listed chemicals and 20 chemical categories. 42 U.S.C. § 11023(c).
Adding Chemicals to the Toxic Chemical List
EPCRA was never intended to establish a static program. Section 313(d)(2) of EPCRA allows EPA to add a chemical to the TRI list when EPA becomes aware a chemical is “known to cause or reasonably can be expected to cause” any of the following health effects:
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Acute health effects. Significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous or frequently recurring releases;
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Chronic health effects. Cancer or teratogenic effects or serious or irreversible reproductive dysfunctions, neurological disorders, heritable genetic mutations, or other chronic health effects in humans; or
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Environmental health effects. Toxicity and persistence in the environment, toxicity and tendency to bioaccumulate in the environment, or significant adverse effect on the environment of sufficient seriousness to warrant reporting under this section at the discretion of EPA.
42 U.S.C. § 1123(d)(2)(A)-(C); 87 Fed. Reg. at 73476.
New Chemicals Added to the EPCRA TRI Toxic Chemicals List
Using this authority, the Biden EPA expanded the list of covered “toxic chemicals” under EPCRA TRI reporting by 12 chemicals, including one PBT, on November 29, 2022. The newly listed toxic chemicals include the following: Dibutyltin dichloride (CAS 683–18–1); 1,3-Dichloro-2-propanol (CAS 96–23–1); Formamide (CAS 75–12–7); 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8- hexamethylcyclopenta[g]-2- benzopyran (CAS 1222–05–5); N-Hydroxyethylethylenediamine (CAS 111–41–1); Nitrilotriacetic acid trisodium salt (CAS 5064–31–3); p-(1,1,3,3-Tetramethylbutyl)phenol (CAS 140–66–9); 1,2,3-Trichlorobenzene (CAS 87–61–6); Triglycidyl isocyanurate (CAS 2451–62–9); Tris(2-chloroethyl) phosphate (CAS 115– 96–8); Tris(1,3-dichloro-2-propyl) phosphate (CAS 13674–87–8); and Tris(dimethylphenol) phosphate (CAS 25155–23–1).
In addition, EPA determined PBT data for 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8- hexamethylcyclopenta[g]-2-benzopyran (HHCB) support a classification of HHCB as a PBT chemical. “Therefore, consistent with EPA’s established policy for PBT chemicals, EPA is establishing a 100-pound reporting threshold for HHCB and including it under 40 CFR 372.28 Lower thresholds for chemicals of special concern.” 87 Fed. Reg. at 73483.
The petition, which was filed by an environmental organization, originally requested 25 chemicals be added to the toxic chemical list, but EPA declined to include16 of those included in the petition. Three of the 25 chemicals were added to the TRI list in separate, unrelated actions (1-bromopropane (80 Fed. Reg. 72906, November 23, 2015), nonylphenol (79 Fed. Reg. 58686, September 30, 2014), and 1,2,5,6,9,10- hexabromocyclododecane (81 Fed. Reg. 85440, November 28, 2016). “Of the remaining . . . chemicals, EPA determined that the available data for nine chemicals was not sufficient for EPA to find that the chemicals meet the EPCRA section 313 listing criteria for human health or ecological effects” and another was not currently in use in the United States. 87 Fed. Reg. at 73477. Industry in the United States must consider the 12 new toxic chemicals when evaluating TRI compliance each year going forward.
The final rule does not become effective until January 30, 2023, and, as a result, will apply to the reporting year beginning January 1, 2023. 87 Fed. Reg. at 74477. Consequently, TRI reports for the newly listed toxic chemicals will first be due July 1, 2024.
Next Steps for Covered Facilities
Facilities must plan to file annual TRI reports if the facility manufacturers, processes, or otherwise uses any of the newly listed chemicals during calendar year 2023 in excess of reporting thresholds. To accomplish this, companies may wish to take the following steps:
Step No. 1: Audit chemical inventories and safety data sheets (“SDS”) at manufacturing and import facilities right away for the presence of newly listed TRI toxic chemicals, paying close attention to mixtures, to determine if the lower threshold HHCB or any of the other newly listed toxics are imported, or manufactured, processed, or otherwise used onsite. The attorney-client and attorney work-product privileges may be used to keep information confidential pending a final determination on the inventory at each facility.
Step No. 2: If not done already, add those toxic chemicals newly listed by EPA to each facility’s chemical inventory and recordkeeping requirements. This data will be critical in determining if reporting thresholds are exceeded in 2023 and beyond, especially for low threshold chemicals like HHCB; and
Step No. 3: Evaluate exemptions and the proper category for each newly listed toxic chemical (manufacture, process, and otherwise use) before filing a TRI form for one of the new chemicals in 2024.
87 Fed. Reg. 73475 (November 30, 2022)
