EPA Enforcement of TRI Form R Threshold Determinations for “Manufactured Metal Compounds” in Plating Baths

The Environmental Protection Agency (EPA) has recently acted to enforce the reporting obligation contained in Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) that applies to surface finishing processes. Although the EPA’s enforcement position is not new, it is of particular concern to captive and job shop surface finishing operations that may not be calculating and accurately documenting threshold determinations of certain manufactured metal compounds on Form R. Special thanks to Don Gallo of Husch Blackwell LLP in Waukesha, WI for his assistance on this issue.

Reporting Requirements

Section 313 of EPCRA, and EPA’s implementing regulations at 40 C.F.R. §§ 372.22 and 372.30, require the reporting of releases of listed hazardous substances by the owner or operator of a facility that has 10 or more full-time employees; is covered by certain SIC codes; meets one of the criteria set forth in 40 C.F.R. § 372.22(b)(1)-(3); and that manufactures, processes or otherwise uses a toxic chemical in an amount exceeding an applicable threshold quantity of that chemical during a calendar year. If a facility is required to report such releases, a toxic chemical release inventory form (Form R) must be submitted to EPA and to the state.

In the plating process intermediate compounds are coincidentally manufactured as the metal is brought into solution. Copper, nickel, zinc and chromium are all processed at the anode of the plating bath and chemical compounds are manufactured via in-bath chemical reactions. The mass of these manufactured compounds must be calculated in determining the mass of toxic chemicals manufactured, processed or otherwise used for threshold reporting determinations.

These chemical reactions and the compounds formed are documented in plating manuals, but may be overlooked in the threshold calculations for Form R reporting. For example, in addition to the calculation of usage for listed EPCRA Section 313 toxic chemicals in purchased mixtures or trade name products, it is necessary to consider the compounds manufactured in the plating bath, such as nickel reacting with sulfate ions to form nickel sulfate and nickel reacting with chloride to form nickel chloride, both of which are included in the nickel compounds toxic chemical listing. The total pounds of nickel compounds manufactured is the sum of nickel sulfate manufactured, in pounds, and nickel chloride manufactured, in pounds, within the plating bath. Failing to include these manufactured compounds in your Form R threshold determinations could result in an incorrect threshold determination.

Guidance on Reporting Requirements and Corrections

NASF has provided guidance on the reporting of manufactured metal compounds and has other tools to assist members with this reporting obligation. In addition, NASF is planning a free webinar this Fall for its members on the reporting of manufactured metal compounds. The webinar will also provide guidance on the options for correcting past Form R submissions, if necessary. Details on the webinar will be provided in the near future.

More Information

For more information on the applicable TRI reporting requirements, contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com or Donald P. Gallo directly (262.956.6224 or donald.gallo@huschblackwell.com).

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