  SEQ CHAPTER \h \r 1 CHAPTER ONE

BACKGROUND AND OVERVIEW OF ANALYSIS

	 The Emergency Planning and Community Right-to-Know Act (EPCRA), also
known as Title III of the Superfund Amendments and Reauthorization Act
of 1986 (SARA), created a broad range of emergency response planning and
reporting requirements for manufacturers, processors, and users of toxic
chemicals in the United States. 42 U.S.C. §§ 11001-11050.  Under
section 313 of EPCRA, certain facilities are required to submit annual
reports to the United States Environmental Protection Agency (EPA) and
to States on their release, transfer, and waste management activities of
certain toxic chemicals if they are manufactured, processed, or
otherwise used above thresholds amounts.  In addition, the Pollution
Prevention Act (PPA) of 1990 requires these same facilities to report
pollution prevention, recycling, and other waste management information
for these same chemicals.  EPA maintains the data collected under EPCRA
section 313 and the PPA in a database known as the Toxics Release
Inventory (TRI).1

	Since the inception of the TRI Program, EPA has implemented measures to
reduce the reporting burden on the regulated universe and to make TRI
reporting as user friendly as possible.  These measures include
compliance assistance activities, such as industry-specific guidance and
annual training workshops.  EPA also reduced the time spent completing
the required TRI forms by developing the Toxics Release Inventory–Made
Easy (TRI-ME) software and adding the Form A certification.  In January
2005, EPA promulgated the TRI Reporting Forms Modification Rule (70 FR
39931, July 12, 2005) that included general options for reducing the
time, cost, and complexity of the reporting requirements imposed on
facilities.  (EPA refers to this rulemaking as the “Phase 1” burden
reduction rulemaking.)

	EPA is now adding options for streamlining TRI reporting.  The purpose
of this rule is to provide additional burden reduction options without
significantly compromising the quality of toxic chemical release data
and of other waste management information.  This additional set of
burden reduction options will be referred to hereafter as the “Phase
2” burden reduction rulemaking.

	This report analyzes economic effects of the Phase 2 burden reduction
options.  To understand the effects of the rule, however, it is first
necessary to understand how EPCRA section 313 and TRI currently operate.
 This chapter provides an overview of TRI followed by a description of
the rule and organization of the report.

1.1	OVERVIEW OF TRI 

	

	In 1986, Congress passed the Emergency Planning and Community
Right-to-Know Act (EPCRA).  The law was passed in response to the
accidental release of methyl isocyanate gas in Bhopal, India, in
December 1984, and to a number of chemical accidents in the United
States, including one in Institute, West Virginia.  These accidental
releases highlighted the lack of information readily available to the
public about toxic chemicals being manufactured, processed, used, and
transported within their communities.  EPCRA is based on the premise
that the public has the right to know about the use of chemicals, as
well as their routine and accidental releases.  The broad purposes are
to encourage planning for response to accidental chemical releases as
well as daily management of routine releases, and to provide the public
and government agencies with information about the presence, release,
and management of toxic chemicals.

	EPCRA contains four main provisions:

Planning for chemical emergencies (sections 301-303),

Emergency notification of chemical accidents and releases (section 304),

Reporting of hazardous chemical inventories (sections 311-312), and

Toxic chemical release reporting (section 313).

Because this rule falls under section 313 (and not the other sections of
EPCRA), the remainder of this overview deals only with the TRI
provisions of section 313.

	The first regulations implementing EPCRA section 313 were promulgated
on February 16, 1988 (53 FR 4500), and are codified at 40 CFR part 372. 
Under these original regulations, owners or operators of regulated
facilities must complete the Toxic Chemical Release Inventory Reporting
Form R, which includes information on releases to air, water, and land,
as well as on-site waste treatment and transfers of the chemical to
off-site locations.  

	A facility must report under section 313 if it meets all of the
following three criteria: 

	(1)	It is in an Industrial Classification code covered by the
regulations;

	(2)	It has ten or more full-time employees (or the hourly equivalent of
20,000 hours); and

	(3)	It manufactures, processes, or otherwise uses any of the listed
toxic chemicals or chemical categories above the applicable reporting
threshold.

Facilities must submit the forms each calendar year to both EPA and the
State in which the facility is located by July 1 of the following year.

	A completed Form R must be submitted for each toxic chemical
manufactured, processed, or otherwise used over threshold levels at each
regulated facility as described in 40 CFR part 372.  For most chemicals,
threshold levels are set at 25,000 lbs for manufacturing and processing
and 10,000 lbs for otherwise use.  40 C.F.R. § 372.25.  Over 600 toxic
chemicals and chemical compound categories are currently on the list of
TRI chemicals.

	TRI is unique among environmental databases because of the multimedia
data it collects, and because it was designed for public access.  EPCRA
requires that EPA “establish and maintain in a computer database a
national toxic chemical inventory based on data submitted to the
Administrator.” 42 U.S.C. § 11023(j).  EPA maintains the section 313
data in the national TRI database.  TRI data are available to the public
in a variety of formats, including on-line and CD-ROM.  With its broad
dissemination, TRI data is used extensively by the public.  Facilities
use the data obtained through TRI to better understand their operations,
and make better use of pollution prevention opportunities. 
Public-interest groups use the data to educate themselves on the
presence of toxic chemicals in the environment, and use that improved
information to engage in a meaningful, productive dialogue with industry
and with all levels of government.  In general, TRI data have proven to
be a powerful tool in environmental decision-making.

1.1.1	Pollution Prevention Act

	In 1990, Congress passed the Pollution Prevention Act (PPA), which
adopted as national policy an environmental hierarchy that establishes
pollution prevention as the first choice among waste management options.
 42 U.S.C. §§ 13101-13109.  For waste that cannot be prevented at the
source, recycling is considered the next best option.  Treatment or
disposal should be considered only after source reduction and recycling
have been eliminated as options.  Section 6607 of the PPA supplemented
the information reported under EPCRA section 313 by requiring facilities
to also report information on their pollution prevention, recycling, and
other waste management activities.  The data elements required by the
Pollution Prevention Act are included as Section 8 of Form R.

1.1.2	Changes to the List of Chemicals

	When Congress passed EPCRA it provided an initial list of approximately
300 chemicals and chemical categories subject to TRI reporting.  The
statutory list was derived from chemical lists used in New Jersey and
Maryland.  Congress also included a provision in EPCRA that EPA may
amend the list of chemicals subject to TRI reporting.  Under section
313(d), EPA has the authority to add a chemical to the list if it
determines that the chemical can cause or can be reasonably anticipated
to cause:

Adverse acute human health effects at concentration levels reasonably
likely to exist beyond facility site boundaries as a result of
continuous or frequently recurring releases;

In humans, cancer or teratogenic effects, serious or irreversible
reproductive dysfunctions, neurological disorders, heritable genetic
mutations, or other chronic health effects; or

A significant adverse effect on the environment. See, 42 U.S.C.§
11023(d).

	EPA has added chemicals to the list through its authority under section
313(d).  Most notably, EPA added 286 chemicals and chemical categories
to the list of toxic chemicals subject to TRI on November 30, 1994 (59
FR 61432).  The majority of these chemicals are pesticides.  Many of the
remainder are chemicals either regulated or identified as concerns under
other environmental statutes such as the Clean Air Act, the Clean Water
Act, and the Safe Drinking Water Act.

	EPA may delete a chemical from the list if it does not meet any of the
above criteria found in 313(d).  According to section 313(e) of EPCRA,
any person may petition EPA to add or delete a chemical from the list on
the basis of whether or not it meets the above criteria.  See 42 U.S.C.
§ 11023(e).  All changes to the list are made through rulemaking under
the Administrative Procedure Act (APA).

	

1.1.3	Alternate Threshold

	On November 30, 1994, EPA finalized the “TRI Alternate Threshold for
Facilities with Low Annual Reportable Amounts” (59 FR 61488).  This
rule was intended to reduce the compliance burden associated with EPCRA
section 313.  It established a streamlined reporting option for
facilities where the annual reportable amount of a listed chemical
released or managed does not exceed 500 pounds.2  Such facilities have
the option of applying an alternate manufacture, process, or otherwise
use threshold of 1 million pounds to that chemical, instead of the
standard thresholds of 10,000 or 25,000 pounds.  If a facility does not
exceed the 1 million-pound threshold, then that facility is eligible to
submit Form A for that chemical instead of Form R. Form A is a
simplified reporting form that includes facility identification
information and identifies the chemical or chemical category being
reported.  The form must be submitted on an annual basis.

1.1.4	Executive Order 12856

	On August 3, 1993, Executive Order 12856, “Federal Compliance with
Right-to-Know Laws and Pollution Prevention Requirements” was signed
by the President (58 FR 41981).  The Executive Order requires federal
facilities to comply with EPCRA requirements beginning with the
1994-reporting year.  The Executive Order also asks all federal agencies
to set a voluntary goal of 50% reduction from baseline quantities of
their releases and transfers by 1999.

1.1.5	Changes to the List of Industries  tc "1.1.5	Changes to the List
of Industries " \l 3 

	On May 1, 1997, EPA added facilities in seven industry groups to the
list of facilities subject to the reporting requirements of section 313
(62 FR 23833).  Prior to this action, reporting was limited to
facilities in the manufacturing sector (SIC codes 20-39) and federal
facilities.  This action added facilities in the following sectors: 

Metal mining, 

Coal mining,

Electric utilities,

Commercial hazardous waste treatment, storage, and disposal facilities

Chemicals and allied products-wholesale,

Petroleum bulk terminals and plants-wholesale, and

Solvent recovery services.

The first reports from these facilities were submitted in 1999 for
reporting year 1998.

1.1.6	Changes for Certain PBT Chemicals

	On October 29, 1999, EPA lowered reporting thresholds to 10 or 100
pounds for certain TRI chemicals (persistent, bioaccumulative and toxic
chemicals, or PBT chemicals) that are of concern because of their
tendency to persist and bioaccumulate (64 FR 58666).  EPA also added to
TRI certain PBT chemicals that were not already listed including a
dioxin category with a reporting threshold of 0.1 gram.  At this time
EPA made other changes to PBT chemical reporting, such as disallowing
the use of the de minimis exemption, range reporting, and Form A
reporting for PBT chemicals.  40 CFR § 372.28(b).  On January 17, 2001,
EPA lowered the reporting threshold for lead and lead compounds to 100
pounds and applied the same limitations as are applied to other PBT
chemicals.  40 CFR § 372.28.

1.2	DESCRIPTION OF THE RULE

	As described above, EPA has implemented a number of burden reduction
measures. To build upon these efforts, EPA conducted a TRI Stakeholder
Dialogue between Fall 2002 and early 2004.  During this dialogue,
improvements to the TRI reporting process were identified and a number
of burden reduction options associated with TRI reporting were explored.
 After reviewing these improvements and reporting options, EPA has
decided to divide the burden reduction effort into phases: Phase 1)
relatively simple modifications to the reporting forms, and Phase 2) new
and expanded eligibility for Form A.

	EPA is adopting two options that it believes may reduce reporting
burden for TRI facilities.  Some facilities may qualify for both
options, however, for different chemicals.  Although these options could
be promulgated separately, EPA is combining the options in this rule.
The following sections outline the specific options that are being
promulgated.

1.2.1	 New Eligibility for Form A: PBT Chemicals

	This option allows facilities reporting on PBT chemicals (except dioxin
and dioxin-like compounds) with no on- or off-site disposal or other
releases (as reported in Sections 5 and 6, Section 8.1 and Section 8.8)
and positive other waste management quantities in Sections 8.2 - 8.8, to
use Form A.  Facilities must also not manufacture, process, or otherwise
use more than 1,000,000 pounds of the chemical and must have less than
or equal to 500 pounds of total non-release waste management quantities
in Sections 8.2 through 8.8.  Note that the 500 pound annual reportable
amount (ARA) is calculated differently under this rule than the current
approach for Form A.  For this option, reporting facilities will sum the
other waste management activities in Sections 8.2 through 8.8 (8.8 is
non-production related waste) to determine if their annual reportable
amount (ARA) is less than or equal to 500 pounds. To use the New
Eligibility for Form A: PBT Chemicals Option, Section 8.8 quantities
cannot include release or disposal quantities.  This approach differs
from the current Form A reporting requirements in that reporters must
also include Section 8.8 non-release quantities when calculating the
ARA.  If this calculation totals less than or equal to 500 pounds, the
reporting facility may use Form A to report in lieu of Form R.

Expanded Eligibility for Form A: Non-PBT Chemicals

TRI reporters are currently able to take advantage of the alternate
reporting threshold if they have an ARA (defined currently as the sum of
Sections 8.1-8.7) of 500 pounds or less.   Under this rule, the ARA is
defined as the total of all production related and non-production
related quantities released (on- and off-site), treated, recycled, and
combusted for energy recovery at the facility, plus all amounts
transferred off-site from the facility for the purpose of recycling,
energy recovery, treatment, and/or disposal. This option extends the
existing Form A eligibility criteria and allows a facility reporting on
Non-PBT chemicals with less than or equal to 2,000 lbs of on- and
off-site disposal and other releases in Sections 5 and 6, Section 8.1
and Section 8.8 and with an ARA of 5,000 lbs or less to use Form A,
provided they meet the 1,000,000 pound alternate reporting threshold. 
As noted above, the 5,000 pound ARA is calculated differently under this
rule than under the previous approach for calculating Form A
eligibility.  For this option, reporting facilities will sum Sections
8.1 through 8.8 (8.8 is non-production related waste) to determine if
their annual reportable amount (ARA) is less than or equal to 5,000
pounds.

1.3	ORGANIZATION OF THIS REPORT

	This report examines the potential burden and cost savings to industry
that would result from the broad, comprehensive set of regulatory burden
reduction options described above.  This report also estimates the other
impacts of the rule.  The remainder of the report is organized as
follows:

Chapter 2 presents the methodology used to estimate the unit burden,
unit costs, and impacts of the Phase 2 rule. 

Chapter 3 presents the total burden and cost savings associated with the
rule. 

Chapter 4 summarizes the benefits of the rule.

Chapter 5 presents the impacts of the rule on reporting. 

Chapter 6 discusses the impact of adding Section 8.8 to the ARA.

Chapter 7 addresses small business impacts.

	1   The term “EPCRA section 313" properly refers to only the
statutory requirements, while the term “TRI” properly refers to the
database that stores the information collected both under EPCRA section
313 and under section 6607 of the PPA.  However, the terms are have
often been used interchangeably by the public to refer to the statute,
the regulatory requirements, the reporting form, the database, and/or
and EPA's program to manage the data.  In deference to common usage, the
terms EPCRA section 313 and TRI are sometimes used interchangeably in
this report where doing so will make the report simpler and easier to
read.  

2  The annual reportable amount is equal to the combined total
quantities recycled, combusted for energy recovery, treated, or
released.  It can be calculated as is the sum of data elements 8.1
through 8.7 on Form R.

 The New Eligibility for Form A: PBT Chemicals Option did not change
between the proposed and final rulemakings.

 Under the proposed rulemaking, the Expanded Eligibility for Form A:
Non-PBT Option applied to all forms with less than or equal to 5,000
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