EPA Proposes New Expansions to the Toxics Release Inventory Program

7/12/2011

The U.S. Environmental Protection Agency (EPA) recently announced its plans to expand the industry sectors required to report to the Toxics Release Inventory (TRI) program and to require electronic reporting for all TRI data. These steps are part of EPA's ongoing efforts to improve and reinvigorate the TRI program.

TRI was established as a part of the Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986, requiring the EPA to make publicly available the releases and transfers of toxic chemicals above a certain threshold. The database of chemical releases became a flagship example of the impact of public transparency. The regular disclosure of chemical releases generated enormous public pressure for companies to reduce the waste they produce, and as a result, the amount of toxic wastes reported has been dropping for years.

The EPA's recent actions are the latest step in the agency's initiative, announced in 2010, to disclose more chemical information to the public. For instance, last year, the EPA added 16 new chemicals to the list of toxic substances that must be reported to TRI, the first time chemicals had been added since 1999.

The agency’s initiative is a welcome break from previous efforts to weaken the TRI program. Under the Bush administration, the EPA weakened the TRI program in 2006 by raising the threshold of chemicals that a facility could release before having to report at all. With the Omnibus Appropriations Act of 2009, Congress and the Obama administration restored the program and reversed the changes.

Environmental and public health organizations welcome EPA’s efforts to expand the TRI program. In An Agenda to Strengthen Our Right to Know, endorsed by more than 100 organizations and released on May 10, recommendations were made to add new reporting industries to the program and require electronic reporting of TRI data.

Expanding Industry Sectors

For the first time in over a decade, the EPA announced, in the agency’s May 2011 Action Initiation List, its plans to consider expanding the industry sectors covered by TRI. The EPA’s aim is to "provide comprehensive toxic chemical release and other waste management information to communities."

This rule could add or expand coverage to the following six industry sectors: Iron Ore Mining, Phosphate Mining, Municipal Waste Incineration, Industrial Dry Cleaning, Petroleum Bulk Storage, and Steam-Only Production from Fossil Fuels. In a statement to OMB Watch, EPA explained that "though still in the early stages of the action development process, this action is aimed at broadening communities' right to know, advancing transparency, and generally furthering the purposes of EPCRA section 313." The agency expects to release a proposed rule in late 2012 and finalize the rule by late 2013.

An Inside EPA article (subscription required) reported that the expansion of TRI to include additional mining comes as the agency "is still weighing clarifications to the TRI reporting requirements for the metal mining industry." The 2001 National Mining Association v. Browner case and the 2003 Barrick Goldstrike Mines v. Whitman case challenged the EPA’s definitions of "manufacturing" and "processing" in the mining context. The cases questioned the reporting requirement for toxic releases of naturally occurring substances brought to the surface by mining activities. The courts ruled in favor of the companies on several points, and the agency has been trying to adjust ever since.

As a result of the court cases, the EPA was to issue a rule to clarify the reporting obligations under TRI. On June 17, the EPA withdrew from consideration a final rule that clarified exemptions to its TRI reporting requirement.

Requiring Electronic Reporting

On May 19, the EPA announced its plans to issue a proposed rule requiring that TRI data be reported electronically. Though facilities may currently submit TRI reporting forms either electronically or by paper, electronic filing has been gradually increasing under agency encouragement.

The proposed rule would require facilities to use the TRI’s web-based application, called the TRI Made Easy Web (TRI-MEweb), to report TRI data to EPA. This requirement would be significantly stronger than the agency’s prior notice on Jan. 14, which only strongly recommended that facilities report TRI data electronically via the TRI-MEweb. In the notice, EPA reported that 94.6 percent of TRI submissions for reporting year 2009 were made electronically, using the TRI-MEweb application. It offered to assist facilities that do not file electronically by providing them with forms that could be filled out on a computer and then printed and mailed.

In its May 19 announcement, the EPA invited the public to make comments in an online discussion forum on its plans to issue a TRI electronic reporting rule. In particular, the EPA expressed an interest in receiving comments on the benefits and impact of using TRI-MEweb and facilities’ experiences using the application. Though the public comment period closed on July 1, the comments are still accessible via the discussion forum’s website. The EPA plans to include the discussion forum, including comments, in the docket labeled EPA-HQ-TRI-2011-0174, which will then be accessible on Regulations.gov.

Part of a Burden Reduction Initiative, TRI-MEweb is a web-based application that enables facilities to file TRI reports electronically. Among the benefits of electronic reporting, according to the agency, is that it significantly reduces data errors and allows instant receipt confirmation of submissions. Moreover, the application requires no downloads or software installs.

In the online discussion forum, OMB Watch emphasized its support of EPA’s plans to require electronic reporting of TRI data, stating, "Electronic reporting improves the accuracy of data and eases public access to the information, leading to environmental and public health gains." Additionally, the electronic reporting system will reduce the processing burden on EPA and allow the agency to more quickly release the TRI data. Electronic reporting has been shown to substantially reduce administrative costs and burdens.

Though electronic reporting would be easier for facilities, there have been complaints about the web-based application and calls for the agency to make improvements to it. In several comments on the online discussion forum, users complained that the web-based application is not intuitive and there are difficulties getting new validating officials approved.

EPA has the authority to require electronic reporting of TRI data under the Government Paperwork Elimination Act (GPEA) and the agency’s Cross-Media Electronic Reporting Regulation (CROMERR). The GPEA requires federal agencies to provide for the "option of electronic maintenance, submission, or disclosure of information, when practicable as a substitute for paper." The CROMERR provides the legal framework for electronic reporting for all EPA environmental regulations. EPA already moved to electronic reporting for new chemical notices under the Toxic Substances Control Act (TSCA) on April 6.

Image in teaser by flickr user Thoth, God of Knowledge, used under a Creative Commons license.