42 U.S.C. § 11023 — Toxic chemical release forms

Page 8103 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11023 Subsec. (e)(4). Pub. L. 115–270, § 2018(b)(2), added par. (4). § 11023. Toxic chemical release forms (a) Basic requirement The owner or operator of a facility subject to the requirements of this section shall complete a toxic chemical release form as published under subsection (g) for each toxic chemical listed under subsection (c) that was manufactured, processed, or otherwise used in quantities ex- ceeding the toxic chemical threshold quantity established by subsection (f) during the pre- ceding calendar year at such facility. Such form shall be submitted to the Administrator and to an official or officials of the State designated by the Governor on or before July 1, 1988, and annu- ally thereafter on July 1 and shall contain data reflecting releases during the preceding calendar year. (b) Covered owners and operators of facilities (1) In general (A) The requirements of this section shall apply to owners and operators of facilities that have 10 or more full-time employees and that are in Standard Industrial Classification Codes 20 through 39 (as in effect on July 1, 1985) and that manufactured, processed, or otherwise used a toxic chemical listed under subsection (c) in excess of the quantity of that toxic chemical established under subsection (f) during the calendar year for which a release form is required under this section. (B) The Administrator may add or delete Standard Industrial Classification Codes for purposes of subparagraph (A), but only to the extent necessary to provide that each Stand- ard Industrial Code to which this section ap- plies is relevant to the purposes of this sec- tion. (C) For purposes of this section— (i) The term ‘‘manufacture’’ means to produce, prepare, import, or compound a toxic chemical. (ii) The term ‘‘process’’ means the prepara- tion of a toxic chemical, after its manufac- ture, for distribution in commerce— (I) in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such chemical, or (II) as part of an article containing the toxic chemical. (2) Discretionary application to additional fa- cilities The Administrator, on his own motion or at the request of a Governor of a State (with re- gard to facilities located in that State), may apply the requirements of this section to the owners and operators of any particular facility that manufactures, processes, or otherwise uses a toxic chemical listed under subsection (c) if the Administrator determines that such action is warranted on the basis of toxicity of the toxic chemical, proximity to other facili- ties that release the toxic chemical or to pop- ulation centers, the history of releases of such chemical at such facility, or such other fac- tors as the Administrator deems appropriate. (c) Toxic chemicals covered The toxic chemicals subject to the require- ments of this section are— (1) the chemicals on the list in Committee Print Number 99–169 of the Senate Committee on Environment and Public Works, titled ‘‘Toxic Chemicals Subject to Section 313 of the Emergency Planning and Community Right- To-Know Act of 1986’’ [42 U.S.C. 11023] (includ- ing any revised version of the list as may be made pursuant to subsection (d) or (e)); and (2) the chemicals included on such list under subsections (b)(1), (c)(1), and (d)(3) of section 8921 of title 15. (d) Revisions by Administrator (1) In general The Administrator may by rule add or delete a chemical from the list described in sub- section (c) at any time. (2) Additions A chemical may be added if the Adminis- trator determines, in his judgment, that there is sufficient evidence to establish any one of the following: (A) The chemical is known to cause or can reasonably be anticipated to cause signifi- cant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site bound- aries as a result of continuous, or frequently recurring, releases. (B) The chemical is known to cause or can reasonably be anticipated to cause in hu- mans— (i) cancer or teratogenic effects, or (ii) serious or irreversible— (I) reproductive dysfunctions, (II) neurological disorders, (III) heritable genetic mutations, or (IV) other chronic health effects. (C) The chemical is known to cause or can reasonably be anticipated to cause, because of— (i) its toxicity, (ii) its toxicity and persistence in the en- vironment, or (iii) its toxicity and tendency to bio- accumulate in the environment, a significant adverse effect on the environ- ment of sufficient seriousness, in the judg- ment of the Administrator, to warrant re- porting under this section. The number of chemicals included on the list described in subsection (c) on the basis of the preceding sentence may constitute in the aggregate no more than 25 percent of the total number of chemicals on the list. A determination under this paragraph shall be based on generally accepted scientific prin- ciples or laboratory tests, or appropriately de- signed and conducted epidemiological or other population studies, available to the Adminis- trator. (3) Deletions A chemical may be deleted if the Adminis- trator determines there is not sufficient evi- dence to establish any of the criteria described in paragraph (2). Page 8104 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11023 1 So in original. Probably should be ‘‘calendar’’. (4) Effective date Any revision made on or after January 1 and before December 1 of any calendar year shall take effect beginning with the next calendar year. Any revision made on or after December 1 of any calendar year and before January 1 of the next calender 1 year shall take effect be- ginning with the calendar year following such next calendar year. (e) Petitions (1) In general Any person may petition the Administrator to add or delete a chemical from the list de- scribed in subsection (c) on the basis of the criteria in subparagraph (A) or (B) of sub- section (d)(2). Within 180 days after receipt of a petition, the Administrator shall take one of the following actions: (A) Initiate a rulemaking to add or delete the chemical to the list, in accordance with subsection (d)(2) or (d)(3). (B) Publish an explanation of why the peti- tion is denied. (2) Governor petitions A State Governor may petition the Adminis- trator to add or delete a chemical from the list described in subsection (c) on the basis of the criteria in subparagraph (A), (B), or (C) of subsection (d)(2). In the case of such a petition from a State Governor to delete a chemical, the petition shall be treated in the same man- ner as a petition received under paragraph (1) to delete a chemical. In the case of such a pe- tition from a State Governor to add a chem- ical, the chemical will be added to the list within 180 days after receipt of the petition, unless the Administrator— (A) initiates a rulemaking to add the chemical to the list, in accordance with sub- section (d)(2), or (B) publishes an explanation of why the Administrator believes the petition does not meet the requirements of subsection (d)(2) for adding a chemical to the list. (f) Threshold for reporting (1) Toxic chemical threshold amount The threshold amounts for purposes of re- porting toxic chemicals under this section are as follows: (A) With respect to a toxic chemical used at a facility, 10,000 pounds of the toxic chem- ical per year. (B) With respect to a toxic chemical manu- factured or processed at a facility— (i) For the toxic chemical release form required to be submitted under this sec- tion on or before July 1, 1988, 75,000 pounds of the toxic chemical per year. (ii) For the form required to be sub- mitted on or before July 1, 1989, 50,000 pounds of the toxic chemical per year. (iii) For the form required to be sub- mitted on or before July 1, 1990, and for each form thereafter, 25,000 pounds of the toxic chemical per year. (2) Revisions The Administrator may establish a thresh- old amount for a toxic chemical different from the amount established by paragraph (1). Such revised threshold shall obtain reporting on a substantial majority of total releases of the chemical at all facilities subject to the re- quirements of this section. The amounts es- tablished under this paragraph may, at the Administrator’s discretion, be based on classes of chemicals or categories of facilities. (g) Form (1) Information required Not later than June 1, 1987, the Adminis- trator shall publish a uniform toxic chemical release form for facilities covered by this sec- tion. If the Administrator does not publish such a form, owners and operators of facilities subject to the requirements of this section shall provide the information required under this subsection by letter postmarked on or be- fore the date on which the form is due. Such form shall— (A) provide for the name and location of, and principal business activities at, the fa- cility; (B) include an appropriate certification, signed by a senior official with management responsibility for the person or persons com- pleting the report, regarding the accuracy and completeness of the report; and (C) provide for submission of each of the following items of information for each list- ed toxic chemical known to be present at the facility: (i) Whether the toxic chemical at the fa- cility is manufactured, processed, or oth- erwise used, and the general category or categories of use of the chemical. (ii) An estimate of the maximum amounts (in ranges) of the toxic chemical present at the facility at any time during the preceding calendar year. (iii) For each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment effi- ciency typically achieved by such methods for that wastestream. (iv) The annual quantity of the toxic chemical entering each environmental me- dium. (2) Use of available data In order to provide the information required under this section, the owner or operator of a facility may use readily available data (in- cluding monitoring data) collected pursuant to other provisions of law, or, where such data are not readily available, reasonable estimates of the amounts involved. Nothing in this sec- tion requires the monitoring or measurement of the quantities, concentration, or frequency of any toxic chemical released into the envi- ronment beyond that monitoring and meas- urement required under other provisions of law or regulation. In order to assure consist- ency, the Administrator shall require that data be expressed in common units. (h) Use of release form The release forms required under this section are intended to provide information to the Fed- eral, State, and local governments and the pub- lic, including citizens of communities sur- Page 8105 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11023 rounding covered facilities. The release form shall be available, consistent with section 11044(a) of this title, to inform persons about re- leases of toxic chemicals to the environment; to assist governmental agencies, researchers, and other persons in the conduct of research and data gathering; to aid in the development of ap- propriate regulations, guidelines, and standards; and for other similar purposes. (i) Modifications in reporting frequency (1) In general The Administrator may modify the fre- quency of submitting a report under this sec- tion, but the Administrator may not modify the frequency to be any more often than annu- ally. A modification may apply, either nation- ally or in a specific geographic area, to the fol- lowing: (A) All toxic chemical release forms re- quired under this section. (B) A class of toxic chemicals or a cat- egory of facilities. (C) A specific toxic chemical. (D) A specific facility. (2) Requirements A modification may be made under para- graph (1) only if the Administrator— (A) makes a finding that the modification is consistent with the provisions of sub- section (h), based on— (i) experience from previously submitted toxic chemical release forms, and (ii) determinations made under para- graph (3), and (B) the finding is made by a rulemaking in accordance with section 553 of title 5. (3) Determinations The Administrator shall make the following determinations with respect to a proposed modification before making a modification under paragraph (1): (A) The extent to which information relat- ing to the proposed modification provided on the toxic chemical release forms has been used by the Administrator or other agencies of the Federal Government, States, local governments, health professionals, and the public. (B) The extent to which the information is (i) readily available to potential users from other sources, such as State reporting pro- grams, and (ii) provided to the Adminis- trator under another Federal law or through a State program. (C) The extent to which the modification would impose additional and unreasonable burdens on facilities subject to the reporting requirements under this section. (4) 5-year review Any modification made under this sub- section shall be reviewed at least once every 5 years. Such review shall examine the modi- fication and ensure that the requirements of paragraphs (2) and (3) still justify continu- ation of the modification. Any change to a modification reviewed under this paragraph shall be made in accordance with this sub- section. (5) Notification to Congress The Administrator shall notify Congress of an intention to initiate a rulemaking for a modification under this subsection. After such notification, the Administrator shall delay initiation of the rulemaking for at least 12 months, but no more than 24 months, after the date of such notification. (6) Judicial review In any judicial review of a rulemaking which establishes a modification under this sub- section, a court may hold unlawful and set aside agency action, findings, and conclusions found to be unsupported by substantial evi- dence. (7) Applicability A modification under this subsection may apply to a calendar year or other reporting pe- riod beginning no earlier than January 1, 1993. (8) Effective date Any modification made on or after January 1 and before December 1 of any calendar year shall take effect beginning with the next cal- endar year. Any modification made on or after December 1 of any calendar year and before January 1 of the next calendar year shall take effect beginning with the calendar year fol- lowing such next calendar year. (j) EPA management of data The Administrator shall establish and main- tain in a computer data base a national toxic chemical inventory based on data submitted to the Administrator under this section. The Ad- ministrator shall make these data accessible by computer telecommunication and other means to any person on a cost reimbursable basis. (k) Report Not later than June 30, 1991, the Comptroller General, in consultation with the Administrator and appropriate officials in the States, shall submit to the Congress a report including each of the following: (1) A description of the steps taken by the Administrator and the States to implement the requirements of this section, including steps taken to make information collected under this section available to and accessible by the public. (2) A description of the extent to which the information collected under this section has been used by the Environmental Protection Agency, other Federal agencies, the States, and the public, and the purposes for which the information has been used. (3) An identification and evaluation of op- tions for modifications to the requirements of this section for the purpose of making infor- mation collected under this section more use- ful. (l) Mass balance study (1) In general The Administrator shall arrange for a mass balance study to be carried out by the Na- tional Academy of Sciences using mass bal- ance information collected by the Adminis- trator under paragraph (3). The Administrator Page 8106 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11023 shall submit to Congress a report on such study no later than 5 years after October 17, 1986. (2) Purposes The purposes of the study are as follows: (A) To assess the value of mass balance analysis in determining the accuracy of in- formation on toxic chemical releases. (B) To assess the value of obtaining mass balance information, or portions thereof, to determine the waste reduction efficiency of different facilities, or categories of facili- ties, including the effectiveness of toxic chemical regulations promulgated under laws other than this chapter. (C) To assess the utility of such informa- tion for evaluating toxic chemical manage- ment practices at facilities, or categories of facilities, covered by this section. (D) To determine the implications of mass balance information collection on a national scale similar to the mass balance informa- tion collection carried out by the Adminis- trator under paragraph (3), including impli- cations of the use of such collection as part of a national annual quantity toxic chemical release program. (3) Information collection (A) The Administrator shall acquire avail- able mass balance information from States which currently conduct (or during the 5 years after October 17, 1986 initiate) a mass balance- oriented annual quantity toxic chemical re- lease program. If information from such States provides an inadequate representation of industry classes and categories to carry out the purposes of the study, the Administrator also may acquire mass balance information necessary for the study from a representative number of facilities in other States. (B) Any information acquired under this sec- tion shall be available to the public, except that upon a showing satisfactory to the Ad- ministrator by any person that the informa- tion (or a particular part thereof) to which the Administrator or any officer, employee, or representative has access under this section if made public would divulge information enti- tled to protection under section 1905 of title 18, such information or part shall be considered confidential in accordance with the purposes of that section, except that such information or part may be disclosed to other officers, em- ployees, or authorized representatives of the United States concerned with carrying out this section. (C) The Administrator may promulgate reg- ulations prescribing procedures for collecting mass balance information under this para- graph. (D) For purposes of collecting mass balance information under subparagraph (A), the Ad- ministrator may require the submission of in- formation by a State or facility. (4) Mass balance definition For purposes of this subsection, the term ‘‘mass balance’’ means an accumulation of the annual quantities of chemicals transported to a facility, produced at a facility, consumed at a facility, used at a facility, accumulated at a facility, released from a facility, and trans- ported from a facility as a waste or as a com- mercial product or byproduct or component of a commercial product or byproduct. (Pub. L. 99–499, title III, § 313, Oct. 17, 1986, 100 Stat. 1741; Pub. L. 116–92, div. F, title LXXIII, § 7321(f), Dec. 20, 2019, 133 Stat. 2281.) Editorial Notes AMENDMENTS 2019—Subsec. (c). Pub. L. 116–92 substituted ‘‘are—’’ and ‘‘(1) the chemicals’’ for ‘‘are those chemicals’’, and added par. (2). Executive Documents EXPEDITING COMMUNITY RIGHT-TO-KNOW INITIATIVES Memorandum of President of the United States, Aug. 8, 1995, 60 F.R. 41791, provided: Memorandum for the Administrator of the Environ- mental Protection Agency and the Heads of Executive Departments and Agencies The Emergency Planning and Community Right-to- Know Act of 1986 (42 U.S.C. 11001–11050) (‘‘EPCRA’’) and the Pollution Prevention Act of 1990 (42 U.S.C. 13101–13109) provide an innovative approach to pro- tecting public health and the environment by ensuring that communities are informed about the toxic chemi- cals being released into the air, land, and water by manufacturing facilities. I am committed to the effec- tive implementation of this law, because Community Right-to-Know protections provide a basic informa- tional tool to encourage informed community-based en- vironmental decision making and provide a strong in- centive for businesses to find their own ways of pre- venting pollution. The laws provide the Environmental Protection Agency with substantial authority to add to the Toxics Release Inventory under EPCRA: (1) new chemicals; (2) new classes of industrial facilities; and (3) additional types of information concerning toxic chemical use at facilities. Community Right-to-Know should be en- hanced wherever possible as appropriate. EPA cur- rently is engaged in an on-going process to address po- tential facility expansion and the collection of use in- formation. I am committed to a full and open process on the policy issues posed by EPA’s exercise of these authorities. So that consideration of these issues can be fully ac- complished during this Administration, I am directing the Administrator of the Environmental Protection Agency, in consultation with the Office of Management and Budget and appropriate Federal agencies with ap- plicable technical and functional expertise, as nec- essary, to take the following actions: (a) Continuation on an expedited basis of the public notice and comment rulemaking proceedings to con- sider whether, as appropriate and consistent with sec- tion 313(b) of EPCRA, 42 U.S.C. 11023(b), to add to the list of Standard Industrial Classification (‘‘SIC’’) Code designations of 20 through 39 (as in effect on July 1, 1985). For SIC Code designations, see ‘‘Standard Indus- trial Classification Manual’’ published by the Office of Management and Budget. EPA shall complete the rule- making process on an accelerated schedule. (b) Development and implementation of an expedited, open, and transparent process for consideration of re- porting under EPCRA on information on the use of toxic chemicals at facilities, including information on mass balance, materials accounting, or other chemical use date [data], pursuant to section 313(b)(1)(A) of EPCRA, 42 U.S.C. 11023(b)(1)(A). EPA shall report on the progress of this effort by October 1, 1995, with a goal of obtaining sufficient information to be able to make informed judgments concerning implementation of any appropriate program. Page 8107 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11042 These actions should continue unless specifically pro- hibited by law. The head of each executive department or agency shall assist the Environmental Protection Agency in implementing this directive as quickly as possible. This directive is for the internal management of the executive branch and does not create any right or ben- efit, substantive or procedural, enforceable by any party against the United States, its agencies or instru- mentalities, its officers or employees, or any person. The Director of the Office of Management and Budget is authorized and directed to publish this Memorandum in the Federal Register. WILLIAM J. CLINTON. SUBCHAPTER III—GENERAL PROVISIONS § 11041. Relationship to other law (a) In general Nothing in this chapter shall— (1) preempt any State or local law, (2) except as provided in subsection (b), oth- erwise affect any State or local law or the au- thority of any State or local government to adopt or enforce any State or local law, or (3) affect or modify in any way the obliga- tions or liabilities of any person under other Federal law. (b) Effect on MSDS requirements Any State or local law enacted after August 1, 1985, which requires the submission of a mate- rial safety data sheet from facility owners or op- erators shall require that the data sheet be iden- tical in content and format to the data sheet re- quired under subsection (a) of section 11021 of this title. In addition, a State or locality may require the submission of information which is supplemental to the information required on the data sheet (including information on the loca- tion and quantity of hazardous chemicals present at the facility), through additional sheets attached to the data sheet or such other means as the State or locality considers appro- priate. (Pub. L. 99–499, title III, § 321, Oct. 17, 1986, 100 Stat. 1747.) § 11042. Trade secrets (a) Authority to withhold information (1) General authority (A) With regard to a hazardous chemical, an extremely hazardous substance, or a toxic chemical, any person required under section 11003(d)(2), 11003(d)(3), 11021, 11022, or 11023 of this title to submit information to any other person may withhold from such submittal the specific chemical identity (including the chemical name and other specific identifica- tion), as defined in regulations prescribed by the Administrator under subsection (c), if the person complies with paragraph (2). (B) Any person withholding the specific chemical identity shall, in the place on the submittal where the chemical identity would normally be included, include the generic class or category of the hazardous chemical, ex- tremely hazardous substance, or toxic chem- ical (as the case may be). (2) Requirements (A) A person is entitled to withhold informa- tion under paragraph (1) if such person— (i) claims that such information is a trade secret, on the basis of the factors enumer- ated in subsection (b), (ii) includes in the submittal referred to in paragraph (1) an explanation of the reasons why such information is claimed to be a trade secret, based on the factors enumer- ated in subsection (b), including a specific description of why such factors apply, and (iii) submits to the Administrator a copy of such submittal, and the information with- held from such submittal. (B) In submitting to the Administrator the information required by subparagraph (A)(iii), a person withholding information under this subsection may— (i) designate, in writing and in such man- ner as the Administrator may prescribe by regulation, the information which such per- son believes is entitled to be withheld under paragraph (1), and (ii) submit such designated information separately from other information sub- mitted under this subsection. (3) Limitation The authority under this subsection to with- hold information shall not apply to informa- tion which the Administrator has determined, in accordance with subsection (c), is not a trade secret. (b) Trade secret factors No person required to provide information under this chapter may claim that the informa- tion is entitled to protection as a trade secret under subsection (a) unless such person shows each of the following: (1) Such person has not disclosed the infor- mation to any other person, other than a member of a local emergency planning com- mittee, an officer or employee of the United States or a State or local government, an em- ployee of such person, or a person who is bound by a confidentiality agreement, and such person has taken reasonable measures to protect the confidentiality of such informa- tion and intends to continue to take such measures. (2) The information is not required to be dis- closed, or otherwise made available, to the public under any other Federal or State law. (3) Disclosure of the information is likely to cause substantial harm to the competitive po- sition of such person. (4) The chemical identity is not readily dis- coverable through reverse engineering. (c) Trade secret regulations As soon as practicable after October 17, 1986, the Administrator shall prescribe regulations to implement this section. With respect to sub- section (b)(4), such regulations shall be equiva- lent to comparable provisions in the Occupa- tional Safety and Health Administration Hazard Communication Standard (29 C.F.R. 1910.1200) and any revisions of such standard prescribed by the Secretary of Labor in accordance with the final ruling of the courts of the United States in United Steelworkers of America, AFL–CIO–CLC v. Thorne G. Auchter.