The March 11, 2009, Omnibus Appropriations Act (the “Act”) repeals the 2006 Toxics Release Inventory Burden Reduction Final Rule (71 Fed. Reg. 76932 (Dec. 22, 2006)) (the “2006 TRI Rule”).  The Act declares that the 2006 TRI Rule “shall have no force or effect,” and provides that the regulations shall revert back immediately to the regulations in effect prior to the 2006 TRI Rule until U.S. EPA takes further action.  This rider to the Appropriations Act repeals the benefits to small businesses previously exempted from reporting certain chemicals used under 500 pounds on EPA’s short Form A.  As pointed out by the Small Business Administration Office of Advocacy, the repealed rule was good for small business because it encouraged recycling.  The new rule has the effect of being a hidden tax that will fall primarily on the shoulders of small business.

On April 21, 2009, U.S. EPA stated in its new rule that it requires compliance with the more stringent pre-2006 regulations for the TRI reporting for year 2008, which is due July 1, 2009.  You should evaluate whether the repeal of the 2006 TRI Rule impacts your Form R and Form A reporting to the U.S. EPA and the State, particularly if you have already filed.  For example, all reporting on persistent, bioaccumulative, and toxic chemicals now must be submitted on Form R for the July 1 due date.  If you used Form A for non-bioaccumulative, persistent or toxic chemicals, you will need to determine if your threshold quantities now require a Form R submission rather than the simpler Form A. 

For more information, please contact Laura Ringenbach at ringenbach@taftlaw.com.