An Overview of Epcra Section 313 Tri Program and Epa's Tri Expansion Initiative

• Publication year: 1997
• Pages: 67
• Citation: Vol. 26 No. 4 Pg. 67

26 Colo.Law. 67 Colorado Lawyer 1997.

1997, April, Pg. 67. An Overview of EPCRA Section 313 TRI Program and EPA's TRI Expansion Initiative

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67

Vol. 26, No. 4, Pg. 67

The Colorado Lawyer
April 1997
Vol. 26, No. 4 [Page 67]

Specialty Law Columns
Natural Resource and Environmental Notes
An Overview of EPCRA § 313 TRI Program and EPA's TRI Expansion Initiative
by Joseph M. Santarella, Jr

Title III of the Superfund Amendments and Reauthorization Act, also known as the Emergency Planning and Community Right to Know Act ("EPCRA"),1 was passed by Congress in 1986 in response to public concern regarding chemical use and risks spurred in part by the human tragedy in Bhopal, India where more than 2,500 people were killed by a release of methyl isocyanate from a Union Carbide chemical plant.2 EPCRA consists of two distinct programs with different but some-what overlapping goals: (1) chemical emergency response planning at the state and local level is promoted and facilitated through the statutory and regulatory program overseen by the Chemical Emergency Preparedness and Prevention Office ("CEPPO") within the U.S Environmental Protection Agency ("EPA"); and (2) information regarding chemical usage, storage, and releases is provided to the public through the Toxic Release Inventory ("TRI") program authorized by § 313 of EPCRA3 as implemented by EPA's Office of Pollution Prevention and Toxics ("OPPT").

This article focuses on the EPCRA *§ 313 TRI program and the implications of the EPA's ongoing TRI expansion initiative on the regulated community. EPCRA differs significantly from more traditional environmental statutes, such as the Clean Air Act ("CAA"),4 the Clean Water Act ("CWA"),5 and the Re-source Conservation and Recovery Act ("RCRA"),6 because the statute is not restrictive or prescriptive in regulating activities or discharges into the environment. Instead, EPCRA seeks to pro-vide information about toxic chemicals to the federal, state, and local government and the community. The EPA as-serts that such public information "fosters informed environmental involvement by many sectors of society . . . [and] motivates improved environmental per-formance."7

EPCRA: Powerful Enforcement Hammer

Notwithstanding EPCRA's commitment to the progressive and laudable goals of pollution prevention and community right-to-know, § 325 of EPCRA8 provides a powerful enforcement hammer like other principal environmental statutes, authorizing the imposition of up to $25,000 in civil penalties per violation for most violations of the statute. Proposed penalties for alleged violations of EPCRA § 313 in an EPA enforcement action may be perceived as particularly harsh. For first-time violators, the EPA often proposes a $17,000 civil penalty for failure to submit the requisite paperwork under § 313 of EPCRA for each chemical used above the applicable threshold in a reporting year pursuant to the EPCRA § 313 Penalty Policy.9

Additionally, in the opinion of this author, EPA enforcement personnel are likely to dedicate increasing resources to EPCRA enforcement efforts as the administration and primary enforcement authority under federal environmental statutes continue to be delegated to the states. In short, failure to comply with the EPCRA § 313 TRI reporting requirements exposes the owner and operator of a covered facility to the po-tential assessment of substantial civil penalties.

EPCRA § 313 TRI Reporting Requirements

Owners and operators of a facility that meet the requirements of EPCRA *§ 313(b) are required to submit annually a Toxic Chemical Release Inventory Re-porting Form, EPA Form 9350-1 (1-90) (hereinafter, "Form R"), for each toxic chemical listed under § 313(c) of EPCRA and 40 C.F.R. § 372.65 that was manufactured, processed, or otherwise used during the preceding calendar year in quantities exceeding the established toxic chemical thresholds. Section 313 (b) of EPCRA identifies owners or operators of facilities that have ten or more full-time employees, and are in Stan-dard Industrial Classification Codes 20 through 39 as being potentially subject to the EPCRA § 313 TRI reporting re-quirements. The completed and correct Form R, as published under § 313(g) of EPCRA, is required to be submitted to the Administrator of the EPA and to the state in which the subject facility is located on or before July 1 of the year after the chemical was manufactured, processed, or otherwise used.

The term "manufacture" is defined at EPCRA § 313(b)(1)(C)(i) to mean "produce, prepare, import, or compound a toxic compound."10 EPA regulations fur-ther provide that the term "manufacture" includes coincidental production during manufacture, processing, use or disposal of another chemical or...