Beveridge & Diamond

TRI Update: Additional Chemicals, and More on the Way

Beveridge & Diamond, P.C., December 6, 2010

The scope of the Toxics Release Inventory (“TRI”) under the Emergency Planning and Community Right-To-Know Act of 1986 (“EPCRA”) just increased, and the U.S. Environmental Protection Agency (“EPA”) has plans to make it even bigger.

1.   Background on TRI

Under section 313 of EPCRA,[1] certain facilities that manufacture, process, or otherwise use specified toxic chemicals in amounts above reporting threshold levels must submit annually to EPA and to designated state officials toxic chemical release reporting forms containing required information.  In addition, under section 6607 of the Pollution Prevention Act of 1990,[2]facilities reporting under section 313 must also report pollution prevention and waste management data, including recycling information, for those chemicals.

According to EPA, TRI data help the public, government officials, and industry in the following ways:

  • to identify potential concerns and gain a better understanding of potential risks;
  • to identify priorities and opportunities to work with industry and government to reduce toxic chemical disposal or other releases and potential risks associated with them; and
  • to establish reduction targets and measure progress toward those targets.[3]           

TRI reporting is required annually.  Each owner or operator of a covered facility must report on or before July 1 on activities during the previous calendar year involving a listed chemical above applicable thresholds that occurred at the covered facility.[4]  Listed chemicals, known as “toxic chemicals,” appear in 40 C.F.R. § 375.65.  EPA originally adopted the TRI list in 1988.[5]  Since, then, EPA has added and removed chemicals from the list.  Before the most recent final rule, described below, there were 581 individually listed chemicals and 30 chemical categories (including 3 delimited categories containing 58 chemicals).  Three chemicals on the list are currently under administrative stays.[6] 

There have been multiple amendments to the TRI program since it was first issued in 1988.  These amendments have expanded the scope of the program and the facilities covered by the rule, as well as the activities subject to regulation.  The most recent prior amendment was the April 2009 change to the TRI reporting requirements, discussed in a previous client alert.[7]

2.   Addition of 16 Carcinogens

On November 26, 2010, EPA published a final rule adding 16 chemicals to the TRI list in 40 C.F.R. § 372.65, the first additions since 1999.[8]  This change, effective on November 30, 2010, will apply to the reporting year beginning on January 1, 2011, for reports due by July 1, 2012.  The final version of the rule contained no changes from the proposed rule.[9] 

The 16 chemicals were listed on the basis of carcinogenicity.  EPCRA provides EPA with the authority to add chemicals to the TRI list when there is enough evidence to verify any of the listing criteria.  EPCRA § 313(d)(2) includes as a criterion chemicals “known to cause or [that] can reasonably be anticipated to cause in humans- (i) cancer ....”

All 16 are listed in the National Toxicology Program (“NTP”) Report on Carcinogens (“RoC”), 11th edition.  NTP describes the RoC as “an informational scientific and public health document ... that identifies and discusses agents, substances, mixtures, or exposure circumstances that may pose a hazard to human health by virtue of their carcinogenicity.”  The 11th RoC contains 246 chemicals, with 58 classified as known human carcinogens and the remaining 188 identified as reasonably anticipated to be human carcinogens.  The 16 chemicals identified in the final rule for listing in the TRI program were identified in the 11th RoC as “reasonably anticipated to be a human carcinogen.”  The 16 include the following 12 individual chemicals:

1-Amino-2,4-dibromoanthraquinone, CAS No. 81-49-2
2,2-bis(Bromomethyl)-1,3-propanediol, CAS No. 3296-90-0
Furan, CAS No. 110-00-9
Glycidol, CAS No. 556-52-5
Isoprene, CAS No. 78-79-5
Methyleugenol, CAS No. 93-15-2
o-Nitroanisole, CAS No. 91-23-6
Nitromethane, CAS No. 75-52-5
Phenophthalein, CAS No. 77-09-8
Tetrafluoroethylene, CAS No. 116-14-3
Tetranitromethane, CAS No. 509-14-8
Vinyl fluoride, CAS No. 75-02-5

They also include the following members of the polycyclic aromatic compounds category, which has a lower threshold per 40 C.F.R. § 372.28(a)(2):

1,6-Dinitropyrene, CAS No. 42397-64-8
1,8-Dinitropyrene, CAS No. 42397-65-9
6-Nitrochrysene, CAS No. 7496-02-8
4-Nitropyrene, CAS No. 57835-92-4

EPA estimates that 175 facilities will be affected by the rule.  The affected facilities will be required to file a total of 186 reports containing release and waste management data for the 16 chemicals that EPA has added.    

3.   Lifting the Stay on Reporting Requirements for Hydrogen Sulfide?

Still pending is EPA’s proposal to lift its long-standing stay in the TRI reporting requirements for hydrogen sulfide, a gas commonly found at refineries, industrial facilities, and some animal feeding operations. 

Hydrogen sulfide was initially added to the TRI in 1993, on the basis of chronic toxicity, over industry objections.  EPA concluded that certain neurotoxic effects of hydrogen sulfide were sufficient evidence for listing hydrogen sulfide on the basis of chronic effects.[10]  However, EPA stayed the mandate in 1994 due to industry objections that (1) it had shifted the basis of its finding from chronic respiratory effects in the proposed rule to chronic neurotoxic effects in the final rule, and (2) it had not included evidence of exposure in its listing decision, in contrast to how it had used exposure analysis in other TRI listings.  EPA indicated that it would issue a “forthcoming” Federal Register notice to solicit comments on those issues, but did not actually do so for nearly 16 years.[11]

In 2003 EPA updated its review of hydrogen sulfide under its Integrated Risk Information System (“IRIS”) program.  The IRIS assessment concluded that the inhalation reference concentration “is based on an effect that could be considered neurological (e.g., olfactory neuronal loss).”[12] 

On February 26, 2010 EPA published a notice indicating its intention to lift the stay for hydrogen sulfide and soliciting comments.  Citing the IRIS reevaluation, EPA concluded that hydrogen sulfide can “reasonably be anticipated to cause serious or irreversible chronic human health effects at relatively low doses and thus is considered to have moderately high to high chronic toxicity.”[13]  Adverse and supportive comments were filed by the May 12, 2010 closure of the comment period.  EPA has not indicated when it expects to take further action.

4.   More Chemicals Under Consideration for Listing

EPA has announced its intention to consider adding several more chemicals to the TRI list, although it has not yet issued any notices of proposed rulemaking to begin the listing process formally.

As part of its “enhanced” chemicals management program under the Toxic Substances Control Act, EPA has issued chemical action plans for eight chemicals or groups of chemicals:  benzidine dyes; bisphenol A; hexabromocyclododecane; nonylphenol and nonylphenol ethoxylates; perfluorinated chemicals; penta, octa, and decabromodiphenyl ethers in products; phthalates; and short-chain chlorinated paraffins.  EPA has announced two additional categories of chemicals for which it is in the process of developing an action plan:  diisocyanates and siloxanes.[14]  The action plans identify EPA concerns and indicate activities, both regulatory and non-regulatory, that EPA will consider to address those concerns.

For three of the action plans released so far, the planned activities include TRI listings for currently unlisted chemicals. These are the plans for hexabromocyclododecane,[15] nonylphenol and certain nonylphenol ethoxylates,[16] and certain phthalates.[17]  Although the earliest of these threeaction plans, that for phthalates, was released nearly a year ago, EPA has not yet issued a rulemaking proposal to add any of these chemicals to the TRI list.

5.   Releases From Articles in Storage

Also pending is EPA action on a proposed interpretation about the scope of the TRI exemption for articles. 

The TRI rules exempt from the threshold quantity calculations the amount of any listed chemical present in an article at a covered facility.  The exemption does not apply to the manufacture or processing of the article.  Moreover, the exemption provides that “[i]f a release of a toxic chemical occurs as a result of the processing or use of an item at the facility, that item does not meet the definition of article.”[18] “Article” is defined in part as a manufactured item with a specific shape and end use based on that shape “which does not release a toxic chemical under normal conditions of processing or use of that item at the facility or establishments.”[19]

In a 2007 letter to members of the wood treating industry, EPA presented its view that they had misinterpreted previous EPA guidance on the scope of the articles exemption.  The letter stated that the exemption does not apply to treated wood that, after processing and during storage, emits listed chemicals into the air or from which listed chemicals drip as a result of processing (treatment with chemicals).  The wood treaters obtained a preliminary injunction on the basis that EPA had previously given the articles exemption “a definitive interpretation” that releases during storage were not subject to TRI reporting.  The court ordered that EPA was “enjoined until further order of this Court from requiring, under [TRI], that plaintiffs and/or their members calculate and report emissions from finished goods in storage.”[20]  The problem was that EPA had not gone through notice and comment on the changed interpretation.

In 2009, EPA responded to the court decision by issuing a proposed clarification of the articles exemption to provide that “[i]f a release of a toxic chemical occurs as a result of the processing or use of an item at the facility, that item does not meet the definition of article and the releases from the item are not exempt.”  It also made a rebuttable presumption that any releases (e.g., offgassing or drippage) of listed chemicals from treated items at a wood treatment facility are the result of processing or use.[21]

Several commenters objected to the proposed clarification.  Nevertheless, EPA sent its final clarification to the Office of Management and Budget (“OMB”) for review on November 15, 2010.[22]  Press reports indicate that some industry commenters on the proposed clarification may ask OMB to disapprove the final clarification.[23]

For more information, please contact Mark Duvall at  This alert was prepared with the assistance of Annise Maguire.

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[1] 42 U.S.C. § 11023.

[2] 42 U.S.C. § 13106.

[3] See

[4] 40 C.F.R. § 372.30(d).

[5] 53 Fed. Reg. 4500 (Feb. 16, 1988).

[6] See

[7] Beveridge & Diamond, P.C., “TRI Developments” (Apr. 3, 2009),

[8] 75 Fed. Reg. 72727 (Nov. 26, 2010).  The most recent previous additions involved PBTs, 64 Fed. Reg. 58666 (Oct. 29, 1999).  Changes to the TRI list are available at

[9] 75 Fed. Reg. 17333 (Apr. 6, 2010).

[10] 58 Fed. Reg. 63500, 63509 (Dec. 1, 1993). 

[11] 59 Fed. Reg. 43048 (Aug. 22, 1994).

[12] EPA, IRIS Summary of Hydrogen Sulfide (2003),

[13] 75 Fed. Reg. 8889 (Feb. 26, 2010). 

[14] EPA, Enhancing EPA’s Chemical Management Program,

[15] EPA, Hexabromocyclododecane (HBCD) Action Plan (Aug. 18, 2010),

[16] EPA, Nonylphenol (NP) and Nonylphenol Ethoxylates (NPEs) Action Plan (Aug. 18, 2010),

[17] EPA, Phthalates Action Plan (Dec. 30, 2009),

[18] 40 C.F.R. § 372.38(b).

[19] 40 C.F.R.. § 372.3.

[20] Creosote Council v. Johnson, 555 F. Supp. 2d 36 (D.D.C. 2008).

[21] 74 Fed. Reg. 42625, 42628 (Aug. 24, 2009).

[22] OMB, Regulations under EO 12866 Review,

[23] Inside EPA, Industry May Urge OMB to Expand EPA’s Planned TRI Waiver for ‘Products’ (Nov. 23, 2010),  Industry representatives had previously met with OMB on this issue on July 26, 2010,  




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