Beveridge & Diamond

Congress Repeals Controversial 2006 TRI Amendments

Beveridge & Diamond, P.C., March 12, 2009

On March 11, 2009, President Obama signed into law the Omnibus Appropriations Act, 2009, H.R. 1105, which rolls back the Toxics Release Inventory Burden Reduction Rule (the “TRI Rule”) issued by the Environmental Protection Agency (“EPA”) in 2006.  See 71 Fed. Reg. 76932 (Dec. 22, 2006).  The much-criticized Bush Administration TRI Rule raised the reporting threshold for chemical releases from 500 pounds to 2,000 pounds and set a first-time threshold of 500 pounds for reporting persistent bioaccumulative toxins.  The Omnibus Appropriations Act (1) blocks all funding implementing the TRI Rule; (2) provides that the TRI Rule “shall have no force or effect”; and (3) by operation of law reverts the text of the TRI regulations to its pre-2006 state.  It states in § 5, Division E, Title IV, § 425:

TOXICS RELEASE INVENTORY REPORTING.  Notwithstanding any other provision of law--

(1) none of the funds made available by this or any other Act may, hereafter, be used to implement the final rule promulgated by the Administrator of the Environmental Protection Agency entitled `Toxics Release Inventory Burden Reduction Final Rule' (71 Fed. Reg. 76932); and

(2) the final rule described in paragraph (1) shall have no force or effect.  The affected regulatory text shall revert to what it was before the final rule described in paragraph (1) became effective, until any future action taken by the Administrator.

EPA is currently party to an ongoing suit challenging the TRI Rule in a New York district court. New York v. Johnson, No. 1:07 cv 10632 (BSJ) (DCF) (S.D.N.Y. filed Nov. 28, 2007).  EPA will now likely move to dismiss the lawsuit on the basis of mootness.  Further, EPA can be expected to publish a Federal Register notice withdrawing the 2006 changes and restoring the TRI rules to their pre-change state, i.e., doing administratively what Congress did legislatively.

For more information, click here for our previous client alert on this topic, or contact Mark Duvall at 202-789-6090,  Bina Reddy assisted in the preparation of this alert.