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07.19.2016 Legal News

EPCRA Section 313 Reporting: Frequent Questions

This is the second installment of frequently asked questions regarding Toxic Release Inventory (TRI) reporting under Section 313 of the Emergency Planning with Community Right-to-Know Act (EPCRA).

As noted in our first installment, EPCRA Section 313 sets standards for TRI reporting and recordkeeping associated with the use, management and storage of a variety of individual chemicals and chemical categories deemed “toxic chemicals” under EPCRA Section 313 and its implementing regulations.  TRI reporting is applicable to, among others, manufacturing, mining, and electric power generation operations that have ten or more full time employees and that manufacture or process at least 25,000 pounds or otherwise use at least 10,000 pounds of a listed toxic chemical during the most recent reporting year.  The following questions and answers, derived from EPCRA regulations and various EPA resources, offer useful insights into EPA’s interpretation of the TRI requirements.

Question No. 1: In 2006, EPCRA regulations were revised to require facilities to use North American Industry Classification System (NAICS) codes in lieu of the previously required four-digit SIC codes.  Must a facility use the more specific six-digit NAICS code when completing the Form R for Reporting Year 2015?

Answer: Yes.  A facility may not rely on three digit NAICS codes when completing Form R.  However, a facility should first consult the NAICS three-digit subsector code or four-digit industry group code in order to determine the proper reporting subcategory.

Question No. 2: EPA publishes “toxic equivalency” values (TEQs) for dioxin and dioxin-like compounds (“Dioxins”) released during a Reporting Year and disclosed on a Form R. What are TEQs?

Answer: Every Form R provides space to report the release of Dioxins at a facility. For EPA (and many in industry), what is most important for the public to understand is the relative degree of toxicity of Dioxins released, not the actual amount.  To this end, a facility must report both (i) the total quantity (in grams/year) of each Dioxin category released (Form R) and (ii) the quantity (in grams/year) of each individual Dioxin compound released, according to its category (Form R Schedule 1).  EPA then calculates the TEQ for each individual Dioxin released by multiplying the reported quantity released for that individual Dioxin by a “toxicity equivalent factor,” providing a sense of relative degree of toxicity for the Dioxin releases.

Question No. 3: If a facility discovers it failed to file a required Form R for RY 2014 for a toxic chemical, is the facility required to file the late Form R?

Answer: No.  EPCRA does not require the submission of late reports.  However, once the deadline passes, and until a Form R is submitted for the toxic chemical, a facility remains liable for failing to file a required Form R until the five-year statute of limitations period expires.  Similarly, a facility may revise or withdraw an inaccurate Form R, but the revision does not remove liability for filing the original erroneous Form R.  Accordingly, often it is best to file a late or corrected Form R to try to decrease any ongoing liability arising from a tardy or inaccurate filing.

Question No. 4: What updates to the electronic Form R were added for Reporting Year 2015?

Answer: There were certain substantive changes incorporated into Reporting Year 2015 Form R (published in January 2016):

  1. New Facility Information: geo-mapping capability and revised facility information are now required;
  2. Nonylphenol (CAS. No. 25154-52-3): this chemical has been added to the list of reportable toxic chemicals; and
  3. P2 Enhancement: a “comment box” is now included for accidental releases of toxic chemicals, allowing explanation of how an accidental release was managed (Section 9.1).