June 13, 2021

Volume XI, Number 164

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EPA Emphasizes Environmental Justice Considerations in Toxic Reporting Program Updates

Last month, EPA announced a planned update of the Toxics Release Inventory (TRI) reporting program, incorporating several additions.  The updates would expand the TRI program by adding new chemicals, facilities, and tools to increase accessibility of data.  The goal, according to EPA’s statement, is “to advance Environmental Justice, improve transparency, and increase access to environmental information.”

Created under the Emergency Planning and Community Right-to-Know Act (EPCRA), the TRI program requires facilities with 10 or more full-time or equivalent employees across a range of industries to report information about the management and release of listed chemicals above certain thresholds that may create risks for human health or the environment, which then becomes publicly available.  Data collected under the TRI program offers a view of environmental performance and compliance at facilities.  But it can also drive rulemaking priorities by identifying regulatory gaps under other, media-specific programs, as well as enforcement, both by EPA and through citizen suits.

Additional Covered Chemicals Subject to Reporting Requirements

EPA’s newly announced update of the TRI will add a host of chemicals to the TRI, including those included in EPA’s Toxic Substances Control Act (“TSCA”) Work Plan for Chemical Assessments, others deemed “high-priority” under TSCA, those included in a 2014 EPCRA petition, as well as certain perfluoroalkyl and polyfluoroalkyl substances (PFAS).  The announcement underscores the potential presence of these chemicals in “fence line communities” that are in “close proximity to industrial uses of these chemicals where releases to water, air, or land could be of a greater impact.”

EPA’s TSCA Work Plan identifies chemicals for further assessment and helps focus and direct EPA’s resources to evaluate whether these chemicals present an unreasonable risk and, if so, pursue further regulatory requirements for the chemicals.  The 2014 Update to the Work Plan included 90 different chemicals.  EPA’s planned updates would add these, as well as the 25 chemicals identified in a 2014 petition submitted under Section 313(e) of EPCRA from the Toxics Use Reduction Institute as potential carcinogens, to the TRI.

As for PFAS, EPA plans to continue adding PFAS substances to the TRI, consistent with the National Defense Authorization Act (NDAA) of 2020.  Numerous PFAS have recently been added to the TRI in the past year or so, based on the NDAA, which added 172 PFAS chemicals to the TRI program (above a 100- pound threshold and for certain industry sectors) for the 2020 reporting year, and three more for the 2021 reporting year.  The NDAA also triggered the addition of more PFAS chemicals under certain circumstances, including when EPA finalizes toxicity values, and EPA stated that it “anticipates the automatic addition of more PFAS.”

Additional Covered Facilities Subject to Reporting Requirements

EPA also plans to subject additional facilities to TRI reporting—or at least reporting for certain chemicals.  For one, it would require TRI reporting from natural gas processing facilities by finalizing a rule proposed under the Obama administration.  That proposal was issued based on petitions from environmental organizations.  EPA’s announcement notes that “millions of people live within 30 miles of at least one” facility in this sector, and would gain information on chemical releases and other waste management activities through TRI reporting.

The TRI update would also require reporting by certain contract sterilization facilities that use ethylene oxide, which poses a cancer risk, to sterilize medical devices or other products that are not already required to report.  This announcement follows a prolonged controversy over an Illinois contract sterilizer facility that ceased TRI reporting of ethylene oxide emissions during the Trump administration based on an exemption for emissions under a 10,000 pound-per-year threshold.  That decision and EPA’s response under the Trump administration have come under fire recently, as EPA’s Inspector General released a report criticizing EPA’s efforts to communicate risks of the emissions to the surrounding community.  EPA’s announcement highlights the concern of impacts to workers and the nexus of these facilities and environmental justice concerns, as many subject facilities are located in or near environmental justice communities.  The specific criteria for ethylene oxide reporting from these facilities are yet to be released, and EPA promises to “provide more details in upcoming months.”

Updated Tools for Enhanced Data Accessibility

EPA’s announcement describes efforts to enhance TRI data accessibility, such as making available a Spanish language version of the TRI website and adding features to existing TRI search tools, including demographic and community data for TRI facilities that incorporate data from EPA’s EJSCREEN mapping platform.  EPA also plans to encourage greater use of Pollution Prevention information tracking, which looks at industry waste reduction and management efforts, to drive further reductions in toxic chemical uses and releases.  Each of these components, EPA contends, is geared toward making “TRI data more useful and accessible to communities with Environmental Justice concerns.”

Implications for Regulated Industry

For the “nearly 22,000 industrial and federal facilities” that EPA notes report under the TRI program, initial steps will be analyzing whether the additional requirements are applicable and complying with them once EPA actually implements the planned updates.

The update could potentially create other challenges, however, of which regulated facilities should be mindful.  For instance, the announced expansions of the TRI program could spur additional enforcement and give regulators or other interested persons more publicly available information that, in some cases, could support enforcement actions or citizen suits.  Agency enforcement efforts are likely to focus on facilities in environmental justice communities.  The TRI update’s focus on environmental justice also showcases EPA’s commitment to furthering environmental justice, consistent with the Biden administration’s executive orders.  An EPA Office of Enforcement and Compliance Assurance memorandum, also issued last month and which we previously wrote about, signals an increase on attention to enforcement in those communities.

In addition to the potential enforcement risks, the planned TRI updates could also have implications for risk evaluations under TSCA and, ultimately, risk management rulemaking.  Recent TSCA risk evaluations, including for certain PFAS compounds, received considerable criticism for containing insufficient exposure data and reaching unreasonable risk findings.  The increased data collection through the planned TRI expansions could provide a significant source of exposure data on PFAS chemicals, which EPA could consider in future risk evaluations for those substances.  Particularly given EPA’s stated priority of addressing PFAS—including through Administrator Regan’s recently announced EPA Council on PFAS—the TRI updates could influence future PFAS risk assessments and potential rulemaking.  The increased information could also dovetail with EPA’s commitment to addressing environmental justice, as risk evaluations require EPA to consider risks to potentially exposed or susceptible subpopulations as part of its analysis.  As a result, the agency could focus on risks to fence line environmental justice communities in future chemical risk evaluations.

Moving forward, facilities should continue to monitor as EPA unrolls the various steps to update the TRI program entailed in its announcement, continue to ensure compliance with those reporting requirements, and pay attention to the ways in which EPA uses information gleaned from TRI reporting.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 131
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Kerry McGrath Environmental Lawyer Hunton Andrews Law Firm
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Kerry has extensive experience with permitting and litigation under the Clean Water Act (CWA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA) and other environmental statutes. She represents groups from a wide variety of industry sectors, including utilities, mining, oil and gas, renewables, agriculture, consumer products, housing and development, and related trade associations and industry coalitions. Kerry has significant experience with federal litigation, drafting comments on administrative rulemakings and counseling clients on compliance with regulatory...

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Matthew Z. Leopold Environmental & Energy Attorney Hunton Andrews Kurth Washington, DC
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Matt advises and defends clients across industries with the strategic insights as former General Counsel for the US Environmental Protection Agency, former General Counsel for the Florida Department of Environmental Protection and a former environmental litigator at the US Department of Justice.

Matt provides his clients with in-depth experience and knowledge respecting the pivotal recent changes in environmental regulation. As EPA General Counsel, he counseled on the development and defense of virtually every significant regulation proposed by EPA since 2017 and was personally...

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Gregory R. Wall Environmental Litigation attorney Hunton Andrews Kurth Law Firm Richmond
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As a former US Environmental Protection Agency (EPA) senior attorney, Greg uses his deep agency, regulatory and enforcement knowledge to assist clients in solving complex environmental matters, with specialized expertise in CERCLA/Superfund, brownfields, RCRA, FIFRA and TSCA legal issues.

With over 15-years of experience in environmental law, Greg assists clients in regulatory counseling, enforcement defense, litigation, and transactional matters. His experience in both private and public practice, in particular at EPA, provides him the ability...

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Alexandra focuses on environmental issues involving regulation, compliance, enforcement and litigation.

She represents clients on regulatory matters in federal appellate and district court litigation, advises clients during the rulemaking process for federal environmental regulations under the Clean Air Act and counsels clients on regulatory compliance related to chemical and toxic substances. Additionally, Alexandra has notable experience working on enforcement matters under the Clean Water Act.

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