RESPONSE TO COMMENTS

TOXICS RELEASE INVENTORY

PHASE 2 BURDEN REDUCTION RULE

Office of Information Analysis and Access

Office of Environmental Information

U.S. Environmental Protection Agency

December 18, 2006

Explanation of the format of this document:

The comment summaries presented in this document represent the topics
under which all comments were organized in the database used to
categorize the thousands of comments submitted.  To produce the
summaries, EPA, with contractor assistance, reviewed the comments
assigned to each topic to identify unique ideas and grouped similar
ideas into paragraphs.  Any statistics cited by a commenter were
included, or, if too lengthy to include in summary format, were
referenced.  In cases in which statistics were submitted from numerous
commenters based on the same form letter format, the statistics from
different submissions were summarized together.

Each summary begins by specifying the number of unique comments and
authors contained therein.  Because of the large number of identical or
slightly altered form letters received by EPA, any given comment summary
may represent many more authors than unique comments.  Whenever
possible, the language in the summaries represents text taken directly
from a commenter’s submission.  In some cases, text was added to the
summary to specify the identity of the commenter.  Any changes to the
comment language were made in order to make the summary document more
concise and coherent and never to add to or alter the content of the
comment submissions.  

Table of Contents

General Comments in Support of the Rule . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . .  4

General Comments in Opposition to the Rule . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . 12

Neutral Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . 66

Comments Related to General Policy Issues . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . 69

Comments on Burden Reduction Options Included in Proposed Rule 

		Form A Eligibility - PBT Chemicals . . . . . . . . . . . . . . . . . .
. . . . . . . . . . 74

		Form A Eligibility – non-PBT Chemicals . . . . . . . . . . . . . . .
. . . . . . . . . 98

Comments on Notice of Intent to Pursue Reporting Frequency Modifications
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . 148

Comments on Burden Estimation Methodology . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 149

Comments on Economic and Regulatory Analysis . . . . . . . . . . . . . .
. . . . . . . . . . . . . . 156

Questions about the Proposed Rulemaking . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . 178

Comments on Additional Burden Reduction Alternatives . . . . . . . . . .
. . . . . . . . . . . . .182

General Comments Related to Burden Reduction . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 188

Comments Unrelated to the Rule . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . 191

					

GENERAL COMMENTS IN SUPPORT OF THE RULE

Comments supportive overall without reservations

Summary of Comments (by Abt):

22 commenters expressed general overall support of the proposal.  Many
commenters noted that the proposal provides much-needed burden reduction
while still preserving the public’s right-to-know.  

Response:

EPA agrees with commenters that this rule provides burden relief. 
Specifically, EPA estimates that 6,670 facilities will be able to take
advantage of the Form A burden savings as a result of this rule.  For
all facilities taking advantage of Form A for a non-PBT chemical, the
Agency estimates the burden savings to be 9.1 hours for each Form A
completed in lieu of a Form R.  For all facilities taking advantage of
Form A for a PBT chemical, the Agency estimates the burden savings to be
15.5 hours for each Form A completed in lieu of a Form R.  For a
detailed breakdown of the savings per Form R, readers should refer to
the economic analysis accompanying the rule.  While this burden savings
may not represent a significant savings for all facilities eligible for
Form A under the proposal, EPA agrees with commenters that the proposed
rule may provide meaningful burden relief for some reporters such as
small facilities.  EPA also acknowledges that facilities with releases
and other waste management amounts well below the threshold for Form A
may be spared the burden of detailed calculations to determine
eligibility for Form A.  

As far as preserving the public’s right-to-know, because the proposed
rule requires zero releases for PBT chemical Form A eligibility, there
will be no loss of detailed Form R release information.  For all 2,360
PBT chemical forms expected to qualify for Form A under this rule, data
users will know that the facility had zero releases to the environment
of the PBT chemical and between zero and 500 pounds of other waste
management.  Thus, the Form A serves as a range report, which informs
the public that other waste management of the PBT chemical is 500 pounds
or less.  

With regard to the non-PBT proposal, EPA has carefully considered the
concerns raised about the impact the proposal could have on the utility
of the data.  Commenters opposed to the proposed 5,000-pound ARA contend
that it is at the local level that a 5,000-pound Form A range of waste
management information, and in particular, release information, will
adversely impact the ability to perform trend analyses, monitor the
performance of individual facilities, and more generally, meet the
intended purpose of the data collection to inform the public,
government, and other data users about releases of toxic chemicals to
the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  Under this rule, each Form A continues to serve
as a range report, informing the public that total releases is in the
range of zero to 2,000 pounds and therefore, Form A continues to obtain
reporting on a substantial majority of total releases of every
TRI-listed chemical at all facilities as required be EPCRA § 313(f)(2).
 42 U.S.C. § 11023(f)(2).  By placing a 2,000-pound limit on the amount
of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden relief while at
the same time providing valuable information to the public consistent
with the goals and statutory purposes of the TRI program.

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

A. Acceptable data loss

Summary of Comments (by Abt):

Three commenters expressed support for the proposed rule specifically
because the data loss is acceptable, given the burden reduction it
provides.  Several commenters stated that the proposal is designed
appropriately for facilities that are zero or micro-releasers, and that
detailed data will still be required for at least 99% of the
production-related waste data.  The National Federation of Independent
Business (NFIB) also stated that of the facilities affected by the
rulemaking, 54 percent release less than 50 pounds of any chemical. Of
those, 78 percent (42 percent of the total) are zero emitters. For 41 of
50 states (plus the District of Columbia), more than half of the
facilities within those states release less than 50 pounds (based on
data prepared by National Environmental Trust (NET)).  The U.S. Small
Business Administration also remarked that Form A’s range reporting
ensures that EPCRA’s “substantial majority” requirement is met,
and that the proposal does not affect the chemical inventory data used
by first responders.

Response:

EPA agrees with commenters that at least 99% of the national TRI
production-related waste management data will be preserved on Form R
under this rule.  Under this rule, for PBT chemical Form A eligibility,
there will be no loss of detailed Form R release information.  For
non-PBTs, however, while the detailed Form R information for the
approximately 14 million pounds of releases estimated by EPA to be
eligible for Form A under the proposal represents information on less
than 1% of total TRI releases nationwide, at the local level the impact
is much more pronounced.  As discussed in the preamble to the proposed
rule, under the proposed 5,000-pound ARA 26 TRI chemicals could convert
to all Form A reporting and 655 Zip codes with at least one TRI facility
(approximately 7% of all Zip codes with a TRI facility) could convert to
all Form A reporting.  While these 655 Zip codes have only one or two
Form Rs currently, for these communities the replacement of detailed
Form R information with Form A range reporting may be significant.  

Commenters have expressed concern about the loss of such TRI information
at the local level.  Commenters opposed to the proposed 5,000-pound ARA
contend that it is at the local level that a 5,000-pound Form A range of
waste management information, and in particular, release information,
will adversely impact the ability to perform trend analyses, monitor the
performance of individual facilities, and more generally, meet the
intended purpose of the data collection to inform the public,
government, and other data users about releases of toxic chemicals to
the environment.   

In response to these concerns, EPA has decided to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals that are considered for Form A.  Under this rule, each Form A
continues to serve as a range report, informing the public that total
releases is in the range of zero to 2,000 pounds and therefore, Form A
continues to obtain reporting on a substantial majority of total
releases of every TRI-listed chemical at all facilities as required be
EPCRA § 313(f)(2).  42 U.S.C. § 11023(f)(2).  By placing a 2,000-pound
limit on the amount of releases that may be applied to the 5,000-pound
ARA for Form A eligibility, this rule preserves almost 60% of the total
release pounds that would no longer be reported on Form R under the
proposed rule at full utilization of Form A and at the same time, this
rule preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden relief while at the same time providing valuable information to
the public, first responders, and all other stakeholders consistent with
the goals and statutory purposes of the TRI program.

B. Burden reduction is helpful

Summary of Comments (by Abt):

Five commenters expressed support for the proposal because the burden
reduction is helpful to businesses.  SC Johnson & Son, Inc. estimated
that time and cost savings realized for their own TRI filings would come
to about 50 hours and $5000 for the first annual submittal following the
rule change, with greater savings in subsequent years.  

Several commenters expressed specific concern for small businesses, who
often do not have dedicated environmental professionals or EPCRA
specialists, and have small or no releases, and stated that this
proposal is especially helpful to them.

Response:

EPA agrees with commenters that this rule provides burden relief. 
Specifically, EPA estimates that 6,670 facilities will be able to take
advantage of the Form A burden savings as a result of this rule.  For
all facilities taking advantage of Form A for a non-PBT chemical, the
Agency estimates the burden savings to be 9.1 hours for each Form A
completed in lieu of a Form R.  For all facilities taking advantage of
Form A for a PBT chemical, the Agency estimates the burden savings to be
15.5 hours for each Form A completed in lieu of a Form R.  For a
detailed breakdown of the savings per Form R, readers should refer to
the economic analysis accompanying the rule.  While this burden savings
may not represent a significant savings for all facilities eligible for
Form A under the proposal, EPA agrees with commenters that the proposed
rule may provide meaningful burden relief for some reporters such as
small facilities.  EPA also acknowledges that facilities with releases
and other waste management amounts well below the threshold for Form A
may be spared the burden of detailed calculations to determine
eligibility for Form A.  

C. Other

Summary of Comments (by Abt):

Three commenters were also supportive of the proposal for additional
reasons not expressed above.  One commenter stated that the data loss to
communities and first responders was acceptable because there would be
less information available to terrorists.  The Consumer Specialty
Products Association (CSPA) remarked that this burden reduction proposal
was simply restoring the balance to EPCRA that was upset with previous
revisions that expanded the number of facilities and chemicals required
to report, and that if EPA had the statutory authority to expand EPCRA,
it also has the authority to restore balance to it.  CSPA also stated
that EPA should ignore complaints from states and their political
subdivisions that they will lose revenue from the piggyback taxes and
fees that they impose on facilities filing Form Rs.  TRI is not the only
source of environmental information available to communities; states and
localities also have a variety of legal mechanisms and a breadth of
information technology to efficiently collect, analyze, and provide
access to the relevant release data.  The National Federation of
Independent Business (NFIB) referred to an Associated Press (AP)
analysis that used data from the “Risk Screening Environmental
Indicators” program to demonstrate the risk that various communities
currently face from facilities that release chemicals.  NFIB suggested
that the AP analysis was fundamentally flawed and should be ignored. 
NFIB’s comment states that AP Reporter John Heilprin released the
results of an in-house AP analysis of the TRI program in light of the
proposed changes, claiming that a broad cross-section of Americans would
be harmed by those changes.  

Response:

This rule provides burden relief.  Specifically, EPA estimates that
6,670 facilities will be able to take advantage of the Form A burden
savings as a result of this rule.  For all facilities taking advantage
of Form A for a non-PBT chemical, the Agency estimates the burden
savings to be 9.1 hours for each Form A completed in lieu of a Form R. 
For all facilities taking advantage of Form A for a PBT chemical, the
Agency estimates the burden savings to be 15.5 hours for each Form A
completed in lieu of a Form R.  For a detailed breakdown of the savings
per Form R, readers should refer to the economic analysis accompanying
the rule.  

As far as preserving the public’s right-to-know, because the proposed
rule requires zero releases for PBT chemical Form A eligibility, there
will be no loss of detailed Form R release information.  For all 2,360
PBT chemical forms expected to qualify for Form A under this rule, data
users will know that the facility had zero releases to the environment
of the PBT chemical and between zero and 500 pounds of other waste
management.  Thus, the Form A serves as a range report, which informs
the public that other waste management of the PBT chemical is 500 pounds
or less.  

With regard to the non-PBT proposal, EPA has carefully considered the
concerns raised about the impact the proposal could have on the utility
of the data.  Commenters opposed to the proposed 5,000-pound ARA contend
that it is at the local level that a 5,000-pound Form A range of waste
management information, and in particular, release information, will
adversely impact the ability to perform trend analyses, monitor the
performance of individual facilities, and more generally, meet the
intended purpose of the data collection to inform the public,
government, and other data users about releases of toxic chemicals to
the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  Under this rule, each Form A continues to serve
as a range report, informing the public that total releases is in the
range of zero to 2,000 pounds and therefore, Form A continues to obtain
reporting on a substantial majority of total releases of every
TRI-listed chemical at all facilities as required be EPCRA § 313(f)(2).
 42 U.S.C. § 11023(f)(2).  By placing a 2,000-pound limit on the amount
of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  

EPA believes that this final rule approach to expanded Form A
eligibility for non-PBT chemicals strikes a better balance than the
proposed rule insofar as providing meaningful burden relief while at the
same time providing valuable information to the public consistent with
the goals and statutory purposes of the TRI program.  EPA emphasizes
that it did not base today’s final rule on concerns about terrorists
using TRI information, previous rules that increased TRI reporting
burden, or other available sources of release and other waste management
data.  

Further, without specifically responding to the validity of the AP study
referenced by NFIB, or other RSEI-based analyses, which rely on TRI
data, EPA recognizes that the proposed expansion of Form A eligibility
for non-PBT chemicals can impact risk rankings such as county-level risk
rankings generated by the Agency's Risk Screening Environmental
Indicators (RSEI) tool.  This is because RSEI does not recognize Form A
in determining the comparative risk of a chemical release quantity
because Form A does not provide specific quantitative information.  EPA
also notes, however, that while RSEI is a valuable tool, it is a
screening tool that makes assumptions about chemical toxicity and
exposure pathways that may not hold true at the local level where a more
robust risk assessment can be undertaken.  More information on the
functionality and limitations of RSEI can be found at:
http://www.epa.gov/oppt/rsei.

  

Finally, as far as states losing funding for their pollution prevention
programs because of the proposed expanded eligibility for Form A, EPA
notes that the TRI program (EPCRA section 313) does not govern state fee
programs.  States have the ability to reassess how they collect fees to
fund their pollution prevention activities and other environmental
programs. 

2. Comments supportive overall but with reservations

Summary of Comments (by Abt):

Two commenters were supportive overall of the proposal, but had specific
reservations.  The American Petroleum Institute wrote that its own
analysis of 2003 TRI data suggests that the estimated burden reduction
is largely overstated due to low utilization of Form A.

The Eastman Chemical Company also expressed concern about the
underutilization of Form A, and suggested that EPA clarify its
enforcement policy to address this.  

Response:

The Economic Analysis that accompanies this rule provides a detailed
explanation of the estimated burden reduction expected to result from
full utilization of Form A.  However, as part of this rulemaking, the
Agency did consider as part of its decision-making process existing Form
A utilization.  Specifically, the Agency observed that only slightly
over half of the forms (54%) potentially eligible for Form A use take
advantage of that option.  The Agency believes there are a number of
potential reasons for this utilization rate, including the desire to
showcase pollution prevention efforts on Form R and the desire to
demonstrate good environmental stewardship.  Regardless of the factors
that prompt facilities to use Form R when they may be eligible for Form
A, the Agency does not believe the rate of Form A utilization is likely
to be significantly higher at a 5,000-pound ARA with a 2,000-pound
release limit for non-PBTs or at a 500-pound ARA with a zero release
requirement for PBTs than it has been to date at the 500-pound ARA
threshold for non-PBTs.

A number of commenters have expressed concern that the lack of a clear
EPA enforcement policy for the erroneous submission of Form A by
facilities acting in good-faith contributes to an unnecessarily low Form
A utilization rate.  These commenters believe that Form A will continue
to be underutilized unless and until the Agency widely clarifies its
enforcement policy among the regulated community.  Reporters should note
that on March 30, 2005, EPA issued a memorandum restating its
enforcement policy for reporters who submit a Form A in lieu of a Form R
when the reporters did not qualify for the alternate threshold reporting
exemption.  At all times since the alternate reporting threshold was
created, EPA enforcement policy has been to treat such a violation as a
Level 3 (data quality) violation.  However, when a person subject to
reporting fails to do so, that violation will be treated as a Level 1
(failure to report) violation, even if the person could have qualified
for the alternate reporting threshold and the report could have been
made on a Form A in lieu of a Form R.  The March 30, 2005, memorandum
and all other EPCRA Section 313 enforcement policy documents can be
found at   HYPERLINK
"http://cfpub.epa.gov/compliance/resources/policies/civil/epcra/index.cf
m" 
http://cfpub.epa.gov/compliance/resources/policies/civil/epcra/index.cfm
. 

A. Minimal burden reduction

Summary of Comments (by Abt):

Six commenters supported the proposal but felt that the burden reduction
offered was minimal.  Onyx Environmental Services stated that most of
the burden for their own facilities is in determining eligibility; the
burden reduction will be in data entry only, and is expected to be
minimal.  The American Petroleum Institute (API) described an analysis
they performed on their industry (SIC codes 2911 and 5171), which found
that with the present Form A utilization rate, only 623 new Form As
could be expected under the proposal.  Although this is not considered
meaningful burden reduction, API supports the proposal.  Several
comments expressed disappointment with the limited burden reduction for
their specific industries (mining, coal mining, and metals-related
industries), or for reporting industries generally.

Response:

EPA believes that this rule provides burden relief.  Specifically, even
with the differences between the proposed rule and the final rule
insofar as non-PBTs are concerned, EPA estimates that 6,670 facilities
will be able to take advantage of the Form A burden savings as a result
of this rule.  For all facilities taking advantage of Form A for a
non-PBT chemical, the Agency estimates the burden savings to be 9.1
hours for each Form A completed in lieu of a Form R.  For all facilities
taking advantage of Form A for a PBT chemical, the Agency estimates the
burden savings to be 15.5 hours for each Form A completed in lieu of a
Form R.  For a detailed breakdown of the savings per Form R, readers
should refer to the economic analysis accompanying the rule.

For those TRI facilities that do not expect to be able to take advantage
of this rule’s expanded Form A eligibility, EPA encourages such
facilities to take advantage of the compliance assistance resources and
other measures the Agency offers to reduce the burden of TRI reporting. 
In fact, throughout the history of the TRI Program, the Agency has
implemented measures to reduce the TRI reporting burden on the regulated
community while still ensuring the provision of valuable information to
the public that fulfills the purposes of the TRI program.  Through a
range of compliance assistance activities, such as the Toxic Chemical
Release Inventory Reporting Forms and Instructions (which is updated
every year), industry training workshops, chemical-specific and
industry-specific guidance documents, and the TRI Information Center (a
call hotline), the Agency has shown a commitment to enhancing the
quality and consistency of reporting and assisting those facilities that
must comply with EPCRA section 313.  In addition, EPA has made
considerable progress in reducing burden through technology-based
processes.  One example of a technology-based process is electronic
reporting using the Toxics Release Inventory - Made Easy (TRI-ME)
software, an interactive, user-friendly software tool that guides
facilities through TRI reporting.  Other technology-based examples
include the use of EPA’s Central Data Exchange (CDX) for form
submission, and the use of data submitted to the Agency through other
EPA programs to pre-populate TRI data fields.  These measures have
reduced the time, cost, and complexity of existing environmental
reporting requirements, while enhancing reporting effectiveness and
efficiency and continuing to provide useful information to the public
that fulfills the purposes of the TRI program.  

					

GENERAL COMMENTS IN OPPOSITION TO THE RULE

1. Comments expressing overall opposition

Summary of Comments (by Abt):

989 unique comments representing 86,424 commenters expressed general
opposition to the proposed rule.  Many commenters suggested that the
proposal favored industry at the expense of the public good, and that
EPA’s prime goal should be the protection of public health and the
environment.  Many commenters also described the success of the TRI
program, and asked why EPA would seek to change a program that is
working well.  Other commenters pointed out that much progress has been
made in reducing toxins, but much work remains to be done, and this is
not an appropriate time to be reducing reporting requirements.

Response:

EPA disagrees with commenters that the proposal favored industry at the
expense of the public good.  As far as preserving the public’s
right-to-know, because the proposed rule as well as the final rule
requires zero releases for PBT chemical Form A eligibility, there will
be no loss of detailed PBT release information.  For all 2,360 PBT
chemical forms expected to qualify for Form A under this rule, data
users will know that the facility had zero releases to the environment
of the PBT chemical and between zero and 500 pounds of other waste
management.  Thus, the Form A serves as a range report, which informs
the public that other waste management of the PBT chemical is 500 pounds
or less.  

With regard to the non-PBT proposal, EPA has carefully considered the
concerns raised about the impact the proposal could have on the utility
of the data.  Commenters opposed to the proposed 5,000-pound ARA contend
that it is at the local level that a 5,000-pound Form A range of waste
management information, and in particular, release information, will
adversely impact the ability to perform trend analyses, monitor the
performance of individual facilities, and more generally, meet the
intended purpose of the data collection to inform the public,
government, and other data users about releases of toxic chemicals to
the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  Under this rule, each Form A continues to serve
as a range report, informing the public that total releases is in the
range of zero to 2,000 pounds and therefore, Form A continues to obtain
reporting on a substantial majority of total releases of every
TRI-listed chemical at all facilities as required be EPCRA § 313(f)(2).
 42 U.S.C. § 11023(f)(2).  By placing a 2,000-pound limit on the amount
of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden relief while at
the same time providing valuable information to the public consistent
with the goals and statutory purposes of the TRI program.

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

A. Data loss is a concern

Summary of Comments (by Abt):

23 commenters expressed general opposition to the proposed rule because
of concerns about data loss.  Many commenters felt that reduced Form R
reporting would prevent the public from fully understanding facility
releases in their communities.  Some commenters were concerned
specifically about the lack of information on Form A, and one commenter
felt that EPA will have difficulty determining, via audits, whether the
forms have been filled out correctly and that the information is
complete and correct.  One commenter cited a 2003 report from OECA as
estimating that 13% of the TRI data may be erroneous, and was concerned
that collecting less information decreased the chances of discovering
erroneous data.  

Many commenters discussed the general lack of information about toxic
releases available to the public, and that in such a situation reducing
the usefulness of one of the main sources of information seems unwise. 
The New Jersey State Department of Environmental Protection stated that
EPA’s discussion of data loss (that only one percent of total releases
will no longer be reported on Form R), does not adequately capture the
local importance of some releases, and that some very small releases may
be highly toxic. The State of Massachusetts noted that 617,000 pounds of
toxics would go unreported in Massachusetts. 

The National Environmental Trust (NET) took issue with statements
attributed by reporters to officials from OEI comparing Form A
certification to the IRS 1040EZ, noting that the IRS requires reporting
of income on that form.  OMB Watch quoted from a 2003 EPA report on the
usefulness of TRI data, and the wide range of programs and activities it
supports.  

Response:

EPA believes the TRI data are of paramount importance to environmental
protection.  With regard to the PBT portion of the rule, the proposed
rule as well as the final rule requires zero releases for PBT chemical
Form A eligibility.  Therefore, there will be no loss of detailed PBT
Form R release information.  For all 2,360 PBT chemical forms expected
to qualify for Form A under this rule, data users will know that the
facility had zero releases to the environment of the PBT chemical and
between zero and 500 pounds of other waste management.  Thus, the Form A
serves as a range report, which informs the public that other waste
management of the PBT chemical is 500 pounds or less.  

With regard to the non-PBT proposal, EPA has carefully considered the
concerns raised about the impact the proposal could have on the utility
of the data.  Commenters opposed to the proposed 5,000-pound ARA contend
that it is at the local level that a 5,000-pound Form A range of waste
management information, and in particular, release information, will
adversely impact the ability to perform trend analyses, monitor the
performance of individual facilities, and more generally, meet the
intended purpose of the data collection to inform the public,
government, and other data users about releases of toxic chemicals to
the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  Under this rule, each Form A continues to serve
as a range report, informing the public that total releases is in the
range of zero to 2,000 pounds and therefore, Form A continues to obtain
reporting on a substantial majority of total releases of every
TRI-listed chemical at all facilities as required be EPCRA § 313(f)(2).
 42 U.S.C. § 11023(f)(2).  By placing a 2,000-pound limit on the amount
of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden relief while at
the same time providing valuable information to the public consistent
with the goals and statutory purposes of the TRI program.

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

As far as the data quality and enforcement implications of expanded Form
A eligibility, the owner/operator or senior management official of a
facility filing a Form A is required to sign a certification statement
that the criteria for Form A eligibility have been satisfied.  Further,
facilities filing a Form A are subject to the recordkeeping requirements
of 40 C.F.R. 372.10.  In addition, throughout the history of the program
EPA has provided various forms of compliance assistance (e.g., guidance,
training sessions, a call center, a TRI Web site, reporting software) to
improve data quality and to promote consistent TRI reporting. 
Recognizing that there still is room for improvement, the Agency intends
to continue its outreach efforts to improve data quality through
reporting compliance.  Nevertheless, EPA believes that the final rule
appropriately balances the provision of meaningful burden relief against
the requirement to provide the public and other data users with valuable
information that is consistent with the goals and statutory purposes of
the TRI program.

 

i. Reduced reporting will result in increased releases/environmental
harm

Summary of Comments (by Abt):

49 unique comments representing 311 commenters expressed general
opposition to the proposed rule because of concerns that reduced
reporting will result in increased releases and environmental harm. 
Many commenters stated that facilities will pollute as much as the law
allows, so any relaxation of requirements will result in increased
releases.  Several commenters stated that they worked at TRI-reporting
facilities; one commenter felt that TRI was already being circumvented
and the proposal would make the situation worse; two commenters felt
that the program worked well now, but that the proposal would penalize
companies that were reducing emissions by allowing other companies to
increase theirs.  One commenter stated that, given substandard
enforcement efforts, any decrease in the amount of TRI information
available to the public would make it harder for citizen’s groups to
detect environmental crimes and spur action to address them.  

Many commenters described the harm to the environment that would result
from increased toxic releases, including damage to ecosystems and loss
of economic value for recreational purposes, tourism, agriculture, and
aquaculture.  Also of concern was the future cost (and the effect on
future generations) of clean-up or remediation from increased releases
and the costs of health care for the health problems associated with
increased releases.

Response:

EPA disagrees with commenters that this rule will result in increased
releases and environmental harm.  For PBTs the Agency believes the
proposed approach to expanded Form A eligibility may result in decreased
releases of these chemicals because it encourages facilities to reduce
their releases to zero.  By limiting PBT Form A eligibility to zero
releases and 500 pounds or less of other waste management (i.e.,
recycling, energy recovery, and treatment for destruction), EPA is
encouraging facilities to eliminate releases of PBT chemicals and reduce
other waste management to below the 500-pound limit.

With regard to the non-PBT proposal, EPA has carefully considered the
concerns raised about the impact the proposal could have on
environmental performance.  For the final rule EPA decided to modify the
proposed 5,000-pound ARA by placing a 2,000-pound limit on releases of
non-PBT chemicals that are considered for Form A.  Under this rule, each
Form A continues to serve as a range report, informing the public that
total releases is in the range of zero to 2,000 pounds and therefore,
Form A continues to obtain reporting on a substantial majority of total
releases of every TRI-listed chemical at all facilities as required be
EPCRA § 313(f)(2).  42 U.S.C. § 11023(f)(2).  By placing a 2,000-pound
limit on the amount of releases that may be applied to the 5,000-pound
ARA for Form A eligibility, this rule preserves almost 60% of the total
release pounds that would no longer be reported on Form R under the
proposed rule at full utilization of Form A and at the same time, this
rule preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden relief while at the same time providing valuable information to
the public consistent with the goals and statutory purposes of the TRI
program.

Similar to the PBT approach to expanded Form A eligibility, the non-PBT
approach to expanded Form A eligibility favors recycling, treatment, and
energy recovery over disposal and other releases.  This tiered approach
to expanded Form A eligibility is structured in a way that encourages
facilities to reduce their releases as compared to the other waste
management activities of recycling, treatment, and energy recovery.

ii. Impact on public health

Summary of Comments (by Abt):

454 unique comments representing 1,450 commenters expressed general
opposition to the proposed rule because of concerns about the
proposal’s impact on public health.  Most commenters stated that this
proposal would greatly inhibit individuals or organizations from
collecting the information needed to protect local communities.  Many
commenters stated that they lived close to TRI-reporting facilities
and/or Superfund sites, and were concerned about the impacts of toxic
releases on their own health, and that of their neighbors, children, and
developing embryos.  Also of concern were the impacts on future
generations.  Many commenters expressed the view that the public health
should be of paramount concern, and is not worth risking for burden
reduction for industry.  Even small facilities or small releases can be
dangerous.

Several commenters (including several physicians) were concerned about
the rising incidence rates of health conditions associated with
environmental pollution, including ADD, asthma, allergies, autism,
congenital abnormalities, multiple chemical sensitivity syndrome,
cancer, respiratory disease, central nervous system damage, and
developmental and learning disabilities, and the rising costs of health
care to treat these conditions.  Many commenters wrote about the
vulnerability of sensitive subpopulations like children, and people with
respiratory conditions, or immune system diseases.  According to one
commenter, research shows that 40% of American citizens have a metabolic
defect that impairs their ability to process toxins that they encounter,
which leads to several severely debilitating, neuro-degenerative
diseases. Another commenter cited evidence of mutations in the animal
kingdom due to environmental pollution, and suggested that it is
probably true for humans as well. 

Several commenters discussed the uncertainty of the current science of
the health effects of toxic chemicals, and noted that EPA should err on
the side of caution:  unless and until EPA can prove that their proposed
changes will not adversely affect public health, there should be no such
changes.  The American Public Health Association and Children’s
Environmental Health Network wrote that the EPA has not provided a
review of the impact of these actions on children's environmental health
nor has it indicated that it has consulted with its own Children's
Health Protection Advisory Committee, a serious omission given
children's unique vulnerabilities. 

Many commenters wrote about specific local environmental problems in
their area.  One commenter described a research project she did in
college on environmental pollution in East Baton Rouge Parish, LA, where
the infant mortality rate is higher than in Haiti, and environmental
pollution is considered to be the main cause.  Many commenters described
their own health problems resulting from environmental pollution.  One
commenter wrote from an (unspecified) organization working on a GIS
research project with a major medical center and university to document
asthma hospitalization rates vs. proximate sources of mobile and point
source air pollution emissions, and finding a very high rate of
correlation of asthma hospitalizations with TRI facilities.  One
commenter wrote from the UK to say that people in the UK rely on the EPA
and other such organizations to published information concerning
environmental health and safety.  Another noted that the pharmacology
industry could treat diseases more efficiently if they also have access
to information about the environment in which that sick person resides.

The Columbia River Inter-Tribal Fish Commission stated that, in light of
the expansive nature of chemical contamination, its known impacts to the
health and the environment, efforts by the EPA to dilute this
information are inappropriate.  EPA has acknowledged its trust
responsibility to the tribes to protect tribal trust resources.  EPA has
also acknowledged its obligation under Executive Order 12898 to ensure
that no population segment will bear an undue amount of adverse human
health based on the agency's policies.  It is a fact that tribal members
consume fish in far greater quantities than the general population.  It
is also a fact that most of these fish are tainted with high levels of
toxic contaminants.  Even at low levels, toxins can bioaccumulate in
many fish species and when consumed in great quantities can adversely
affect human health. Tribal resource biologists and managers are trying
to decrease the source of these toxins, but are lacking in resources to
do so.  Tribes are using information provided by TRI to address these
problems.  Without a comprehensive and robust inventory, however, the
tribes will continue to bear a disproportionately high risk of harm to
their health.

Frank Pallone and 56 other members of the US House of Representatives
wrote that scientists have developed a large body of evidence indicating
that exposure to industrial chemicals is widespread among Americans,
often resulting in adverse health impacts, especially among children. 
For example, the National Academies of Science found that 25% of
developmental and neurological problems in children were due to the
interplay between exposure to chemicals and genetic factors, and a full
3% of the problems were due to chemical exposure alone.  As the Centers
for Disease Control and Prevention has indicated, however, there is
still a great deal of research that needs to be conducted before
scientists can fully appreciate the impact of toxic chemicals on human
health.  Nancy Johnson and 5 other members of the US House of
Representatives wrote that they are extremely concerned by the proposal.
 Reducing reporting and the other changes proposed would result in not
only an increased amount of toxins but also produce a public health
hazard.  These reports not only stimulated improvements to reduce toxin
use but inform thousands of communities across the country, and downwind
states would be adversely affected by the proposed changes.

NH PIRG wrote that, according to an analysis of TRI data, releases to
air and water by the original TRI industries of carcinogenic chemicals
declined by 41 percent between 1995 and 2000.  Developmental toxicant
releases fell by 47 percent, reproductive toxicant releases by 49
percent, releases of suspected neurological toxicants by 31 percent and
releases of suspected respiratory toxicants by 23 percent.  The dramatic
drop in releases reported to TRI should have a positive impact on the
health of the American public.  More science is emerging every day
linking the growing rates of chronic disease in this country with
environmental exposures to toxic chemicals.  A groundbreaking 2000
study, for example, published in the New England Journal of Medicine,
found that the environment played “the principal role in causing
sporadic cancer.”  This same study attributed 25% of the causation of
breast cancer to the environment.  In addition, the National Academy of
Sciences found that toxic exposures cause at least 3% of all
developmental disorders and learning disabilities facing our nation’s
children and may play a role in an additional 25%.

Response:

The TRI Program is an environmental information program.  While it
provides important information that may indirectly lead to improved
health and environmental conditions on the community level, it is not an
emission or release control regulation that could directly affect health
and environmental outcomes in a community.  The principal consequence of
today’s action will be to reduce the amount of detailed information
available on some toxic chemical releases or management.  However, as
pointed out in the previous discussions, the impacts will be very small
in terms of total national figures.  EPA believes that the data provided
under this rule will continue to provide valuable information that
fulfills the purposes of the TRI program.  

EPA believes that the proposed and final approach for allowing Form A
for PBT chemicals will not result in negative environmental impacts. 
Rather, the Agency believes this approach may result in decreased
releases of these chemicals because it encourages facilities to reduce
their releases to zero.  By limiting this approach to PBT chemicals with
zero releases and 500 pounds or less of other waste management (i.e.,
recycling, energy recovery, and treatment for destruction), EPA is
encouraging facilities to eliminate releases of PBT chemicals and reduce
other waste management to below the 500-pound limit.  Only the non-PBT
chemical portion of today's rule will have any effect on the reporting
of chemicals released to the environment.  The PBT chemical portion of
this rule requires that facilities reporting PBTs have no releases in
order to be eligible for Form A. 

In response to concerns that the proposed rule's 5,000-pound ARA for
non-PBT chemicals could result in less Form R information on releases
with associated adverse health effects, EPA has decided to modify the
proposed 5,000-pound ARA by placing a 2,000-pound limit on releases of
non-PBT chemicals being considered for Form A.  In other words, based on
this modification to the proposal, in order for a facility to use the
Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  Under this
rule, each Form A continues to serve as a range report, informing the
public that total releases is in the range of zero to 2,000 pounds.  By
placing a 2,000-pound limit on the amount of releases that may be
applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total release pounds that would no longer be
reported on Form R under the proposed rule at full utilization of Form A
and at the same time, this rule preserves almost 80% of the burden
reduction offered by the non-PBT portion of the proposed rule.  EPA
believes that this final rule approach to expanded Form A eligibility
for non-PBT chemicals strikes a better balance than the proposed rule
insofar as providing meaningful burden reduction while at the same time
ensuring that the intended purposes of the TRI data are satisfied.      

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

Under Executive Order 12898, “Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,” EPA has
undertaken to incorporate environmental justice into its policies and
programs.  EPA is committed to addressing environmental justice
concerns, and is assuming a leadership role in environmental justice
initiatives to enhance environmental quality for all residents of the
United States.  The Agency’s goals are to ensure that:  (1) no segment
of the population, regardless of race, color, national origin, or
income, bears disproportionately high and adverse human health and
environmental effects as a result of EPA’s policies, programs, and
activities; and (2) all people are treated fairly and are given the
opportunity to participate meaningfully in the development,
implementation, and enforcement of environmental laws, regulations, and
policies. 

The TRI Program is an environmental information program.  While it
provides important information that may indirectly lead to improved
health and environmental conditions on the community level, it is not an
emissions release control regulation that could directly affect health
and environmental outcomes in a community.  The principal consequence of
today’s action will be to reduce the amount of detailed information
available on some toxic chemical releases or management.  However, as
pointed out in the previous discussion, the impacts will be very small
in terms of total national figures.  EPA believes that the data provided
under this rule will continue to provide valuable information that
fulfills the purposes of the TRI program.  By structuring Form A
eligibility for both PBT chemicals and non-PBT chemicals in a way that
favors recycling and treatment over disposal and other releases,
today’s rule encourages facilities to reduce their releases and
ensures that valuable information will continue to be provided to the
public pursuant to the purposes of section 313 of EPCRA and section 6607
of PPA.  Furthermore, only the non-PBT chemical portion of today’s
rule will have any effect on the reporting of chemicals released to the
environment.  The PBT chemical portion of this rule requires that
facilities reporting PBTs have no releases in order to be eligible for
Form A.  EPA does not have any evidence that this rule will have a
direct effect on human health or environmental conditions.  The Agency
has given careful consideration to the level of detail in the
information available to minority and low-income communities.  While
there is a higher proportion of minority and low-income communities in
close proximity to some TRI facilities than in the population generally,
the rule does not appear to have a disproportionate impact on these
communities, since facilities in these communities are no more likely
than elsewhere to become eligible to use Form A as a result of the rule.
 Results of the environmental justice assessment on the final rule are
available in the information docket.

Moreover, Executive Order 13175, entitled “Consultation and
Coordination with Indian Tribal Governments” (65 FR 67249, November 6,
2000), requires EPA to develop an accountable process to ensure
“meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.”  “Policies that
have tribal implications” is defined in the Executive Order to include
regulations that have “substantial direct effects on one or more
Indian tribes, on the relationship between the Federal Government and
the Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.” This rule does not
have tribal implications.  It will not have substantial direct effects
on tribal governments, on the relationship between the Federal
government and Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes, as
specified in Executive Order 13175. 

iii. Data needed to support pollution reduction efforts

Summary of Comments (by Abt):

53 unique comments representing 4,372 commenters expressed general
opposition to the proposed rule because of concerns about losing data
needed to support pollution reduction efforts.  Many commenters wrote
about using TRI data to support local initiatives to address pollution
including places like Calhoun County, TX; Louisville, KY;  Puget Sound,
WA; Athens, GA; and Allegheny County, Philadelphia, and Zelienople, PA. 
One commenter stated that the TRI release information that EPA otherwise
would not release has become the great equalizer for out-gunned and
undermined grassroots groups in their battles to fight pollution. 
Another commenter noted that information is the engine that drives
pollution reduction, and is more important than analysis, and said that
other environmental laws simply do not track the full range of toxic
chemicals listed under the TRI.  People for Puget Sound wrote that they
rely on TRI for so much of their pollution information because
Washington State and the federal agencies do not have adequate funding
to monitor toxic pollution through their existing ambient monitoring
programs or during compliance inspections.

Government agencies also commented on the necessity of TRI in its
current form.  The New Jersey Department of Environmental Protection
wrote that the greatest value derived from the use of TRI data is at the
local level and the level of the individual facility, and described
examples of the pollution reduction activities that were based on
information from TRI:

· Eliminate emissions of hydrazine, a carcinogen, from a facility in
Newark that was the state's largest emitter of hydrazine.

· Identify both a health threat and pollution reduction opportunities
from boat manufacturers, which were able to reformulate their processes
to reduce emissions of the carcinogen styrene.

· Reduce emissions of benzene from a refinery.

· Develop and undertake enforcement sweeps focused on two urban
communities where residents were concerned about the impact of various
industrial facilities on their children.

· Identify opportunities to reduce reliance on toxic and hazardous
substances in particular production processes.  For example, the NJDEP
has advised facilities with degreasing operations of the ability to
reduce their use of dichloromethane, a hazardous air pollutant. One
facility is already on track to eliminate releases of 15,000 pounds per
year of this pollutant, and other facilities are expected to have the
same opportunity.

The Conference of Mayors stated that TRI reporting often triggers a
city's outreach, pollution prevention, and waste management programs,
and that increasing the acceptable occurrences of Form A use for waste
and emissions generators will undermine these pollution prevention
efforts, as well as deprive citizens of their right to know which
industries are discharging or emitting particular wastes in their
neighborhoods.

The Commonwealth of Massachusetts described the Toxics Use Reduction
Institute (TURI) in Massachusetts, established by the Toxics Use
Reduction Act (TURA) of 1989, which relies heavily on the TRI program. 
TURI was established to research, test and promote alternatives to toxic
chemicals and to provide resources and tools for safer homes and
workplaces.  TURI requires companies in Massachusetts to report on their
chemical use and uses TRI data to collect information on toxic chemical
releases and transfers off-site in the Commonwealth.  Changes to the TRI
program would drastically decrease the amount of information available
to state officials and citizens and would hamper toxics use reduction
efforts underway in Massachusetts.

Another commenter stated that advances in atmospheric chemistry will
make it increasingly important to know exactly where pollutants are
being emitted, making TRI that much more critical.  Another commenter
noted that less information will make pollution reduction programs less
efficient and more costly.

Response:

EPA believes that the proposed and final approach for allowing Form A
for PBT chemicals supports pollution prevention.  The Agency believes
this approach may result in decreased releases of these chemicals
because it encourages facilities to reduce their releases to zero.  By
limiting this approach to PBT chemicals with zero releases and 500
pounds or less of other waste management (i.e., recycling, energy
recovery, and treatment for destruction), EPA is encouraging facilities
to eliminate releases of PBT chemicals and reduce other waste management
to below the 500-pound limit.  Only the non-PBT chemical portion of
today's rule will have any effect on the reporting of chemicals released
to the environment.  The PBT chemical portion of this rule requires that
facilities reporting PBTs have no releases in order to be eligible for
Form A. 

In response to concerns about supporting pollution prevention, EPA has
decided to modify the proposed 5,000-pound ARA by placing a 2,000-pound
limit on releases of non-PBT chemicals being considered for Form A.  In
other words, based on this modification to the proposal, in order for a
facility to use the Form A Certification Statement for a non-PBT
chemical, the facility cannot have more than 5,000 pounds of total waste
management (i.e., releases, recycling, energy recovery, and treatment)
of that chemical, and the contribution of releases toward the
5,000-pound total waste management amount must be no greater than 2,000
pounds.  Under this rule, each Form A continues to serve as a range
report, informing the public that total releases is in the range of zero
to 2,000 pounds.  By placing a 2,000-pound limit on the amount of
releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden reduction while
at the same time ensuring that the intended purposes of the TRI data are
satisfied.       

By limiting the release portion of the 5,000-pound ARA to 2,000 pounds,
EPA is structuring the Form A eligibility criteria in a way that
promotes treatment and recycling over releases.  Such a structure is
consistent with national policy on pollution prevention.  Section
6602(b) of the Pollution Prevention Act of 1990 reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

By raising the recycling, treatment, and energy recovery portions of the
ARA to a 5,000-pound maximum, while capping releases at 2,000 pounds,
EPA has built into the Form A eligibility criteria an incentive for
facilities to move away from disposal and other releases toward
treatment and recycling.  Further, by including all waste management
activities in the Form A eligibility criteria EPA is encouraging
facilities above the 5,000-pound ARA to reduce their total waste
management in order to qualify for Form A.  EPA believes that this
approach to expanded Form A eligibility for non-PBT chemicals balances
burden reduction against the need to provide information consistent with
the goals and statutory purposes of the TRI program and at the same
time, promotes pollution prevention and recycling and treatment over
releases.

In summary, the final rule approach to expanded Form A eligibility for
non-PBTs is similar to the PBT approach to expanded Form A eligibility
insofar as they both favor recycling, treatment, and energy recovery
over disposal and other releases.  This tiered approach to expanded Form
A eligibility is a structure that encourages facilities to reduce their
releases as compared to the other waste management activities of
recycling,

treatment, and energy recovery.

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

iv. Impacts ability to prepare for terrorism

Summary of Comments (by Abt):

Seven commenters expressed general opposition to the proposed rule
because of concerns about losing data needed to prepare for terrorism,
particularly given the national security threats today.  Commenters said
that TRI has grown in importance in providing local elected officials,
first responders, and families with critical information on the location
and amount of toxic chemicals in our communities, and that the proposed
rule would weaken the availability of such information to local elected
and administrative officials throughout the country, putting the
interest of chemical facilities ahead of the safety of citizens.

Response:

As far as preserving the public’s right-to-know for all uses of the
TRI data including use of the data to prepare for terrorism, because the
proposed and final rule requires zero releases for PBT chemical Form A
eligibility, there will be no loss of detailed PBT release information
for these chemicals.  For all 2,360 PBT chemical forms expected to
qualify for Form A under this rule, data users will know that the
facility had zero releases to the environment of the PBT chemical and
between zero and 500 pounds of other waste management.  Thus, the Form A
serves as a range report, which informs the public that other waste
management of the PBT chemical is 500 pounds or less.  

For non-PBT chemicals EPA has decided to modify the proposed 5,000-pound
ARA by placing a 2,000-pound limit on releases of non-PBT chemicals that
are considered for Form A.  Under this final rule, each Form A continues
to serve as a range report, informing the public that total releases is
in the range of zero to 2,000 pounds.

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

In response to commenters’ concerns about being prepared for
emergencies, EPA points out that there are sections of EPCRA that
specifically address emergency planning and notification.  These
sections of EPCRA provide important information to responders and
communities.

v. Potential for sensitivity to even low levels of exposure

Summary of Comments (by Abt):

Ten unique comments representing 21 commenters expressed general
opposition to the proposed rule because of concerns about the
sensitivity of people to low levels of exposures to toxics.  Most
commenters stated that in recent years scientific advances have made it
possible to detect and document adverse effects to very low exposure
levels.  Some commenters specifically mentioned concerns about endocrine
disruptors, and the synergistic effects of multiple toxic chemicals.  

Response:

In response to concerns about the sensitivity of people to low levels of
exposures toxics EPA reminds commenters that for PBT chemical Form A
eligibility there will be no loss of detailed PBT release information
for these chemicals.  For all 2,360 PBT chemical forms expected to
qualify for Form A under this rule, data users will know that the
facility had zero releases to the environment of the PBT chemical and
between zero and 500 pounds of other waste management.  Thus, the Form A
serves as a range report, which informs the public that other waste
management of the PBT chemical is 500 pounds or less.  For non-PBT
chemicals EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  Accordingly, under this final rule, each Form A
continues to serve as a range report, informing the public that total
releases is in the range of zero to 2,000 pounds.  Moreover, the final
rule approach to expanded Form A eligibility for non-PBTs is similar to
the PBT approach to expanded Form A eligibility insofar as they both
favor recycling, treatment, and energy recovery over disposal and other
releases.  This tiered approach to expanded Form A eligibility is a
structure that encourages facilities to reduce their releases as
compared to the other waste management activities of recycling,

treatment, and energy recovery.  

Further, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  The information provided from these sources can
help individuals assess whether combinations of chemicals being used at
a facility may pose a risk of synergistic effects.

vi. Affects use of the data

Summary of Comments (by Abt):

37 unique comments representing 43 commenters expressed general
opposition to the proposed rule because it detrimentally affects the use
of TRI data.  The Pennsylvania Department of Labor and Industry stated
that, while the initiatives may provide some administrative relief to
the EPA and reporting facilities, there will be a terrible cost to EPA's
partners that rely on the TRI information at the state, tribal and local
levels, as well as communities, environmental groups, citizens and the
media.  The Oregon Department of Environmental Quality (DEQ) also noted
that there is no other consistent and reliable source for this kind of
data, and Oregon Public Interest Research Group wrote that the Oregon
DEQ uses TRI data to model and rank the risks to human health and the
environment.  Several other commenters said that relaxing the reporting
requirements now not only makes the data less useful going forward, but
also adversely affects the value of the entire TRI time-series data set.
 One commenter noted that while EPA has argued that the proposed changes
would reduce the burden on reporting facilities, the Agency does not
seem to have considered the burden that the changes would place on the
data's users, including the media and the public.

The Delaware Department of Natural Resources and Environmental Control
said that just as using a different basis for reportable amounts for PBT
and non-PBT chemicals will confuse reporters, there will also be
confusion among data users who, as a group, are undoubtedly less
experienced in analyzing data.  Comparison on an equal basis will not be
possible.  The data users will probably not fully remember or be able to
understand how to compare the differences between data prepared using
prior years' basis and data prepared using the new basis, or the
difference between PBT and non-PBT data presented in the same year.  The
Columbia River Inter-Tribal Fish Commission similarly wrote that the
anticipated need to expend already limited resources to predict waste
management methods employed by a chemical facility is neither reassuring
nor helpful.  A data user should not be required to predict - "based on
individual chemicals" as suggested by EPA - the type of waste method
likely used by a facility in order to estimate discharge.  The
Commission also wrote that TRI data provides critical information to
tribal scientists (and others) on local and regional chemical releases. 
Information acquired through the TRI program is critical to assessing
potential impacts (e.g., acute, chronic, indirect and cumulative), to
the tribal fishery and is also used to improve our understanding of the
spatial distribution of theses releases.  It is an important part of the
information base that is used to develop management strategies and
policies to minimize or ameliorate these impacts.  The New York State
Department of Environmental Conservation made the same point, and added
that their Division of Air Resources uses such data as a check on
permitted air facilities.  In addition, they stated that it is difficult
for a state agency to make guesses about waste management, but for the
public (for which this program was created), EPA is imposing an
unreasonable burden.

Other commenters stated that TRI is an excellent resource for students
and teachers to study mathematics and science in a context relevant to
their communities and lives, and that reducing TRI requirements will
make public health management far more difficult and vastly more costly,
by hiding environmental sources of disease, and increasing the cost of
medical treatment and environmental remediation for all Americans.

Response:

EPA disagrees with commenters that the proposed rule detrimentally
affects the use of the TRI data.  With regard to the PBT portion of the
rule, because the proposed rule as well as the final rule requires zero
releases for PBT chemical Form A eligibility, there will be no loss of
detailed PBT release information.  For all 2,360 PBT chemical forms
expected to qualify for Form A under this rule, data users will know
that the facility had zero releases to the environment of the PBT
chemical and between zero and 500 pounds of other waste management. 
Thus, the Form A serves as a range report, which informs the public that
other waste management of the PBT chemical is 500 pounds or less.  For
chemicals such as lead and mercury, where the only possible waste
management activities are releasing and recycling the chemical, a Form A
filed pursuant to this rule for either of these chemicals means the
facility may have no more than 500 pounds of recycling.  

With regard to the non-PBT portion of the proposal, EPA has carefully
considered the concerns raised about the impact the proposal could have
on uses of the data.  Commenters opposed to the proposed 5,000-pound ARA
contend that it is at the local level that a 5,000-pound Form A range of
waste management information, and in particular, release information,
will adversely impact the ability to perform trend analyses, monitor the
performance of individual facilities, and more generally, meet the
intended purpose of the data collection to inform the public,
government, and other data users about releases of toxic chemicals to
the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  Under this rule, each Form A continues to serve
as a range report, informing the public that total releases is in the
range of zero to 2,000 pounds.  By placing a 2,000-pound limit on the
amount of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden relief while at
the same time providing valuable information to the public consistent
with the goals and statutory purposes of the TRI program.

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

Impacts community understanding of local pollution 

Summary of Comments (by Abt):

150 unique comments representing 30,693 commenters expressed general
opposition to the proposed rule because the data loss will affect
community understanding of local pollution.  Many commenters stated that
while the nationwide loss of information may be small, in local
communities the loss of information may be very substantial, and will
negatively impact the ability of local citizens and organizations to
understand the magnitude and sources of local pollution.  The Society of
Environmental Journalists wrote that much of the total amount of TRI
emissions by weight comes from a few industries or plants.  What matters
to people is information about emissions near them, and the fine-grained
local information is exactly what would be lost under this proposal. 
Cathy Cloutier of Delaware House of Representatives also wrote that,
armed with information, community leaders have been able engage
industrial and government officials to openly discuss concerns and
address problems.  

Several other private citizens wrote about instances where they used TRI
to find out about sources of local pollution.  One commenter wrote that
after a local facility misrepresented their emissions to the local
community, TRI is now used to annually check that the facility is being
truthful about changing emissions during production process changes and
production level increases.  The Northwest District Association of
Portland, Oregon stated that it uses TRI data to better define the
“hot spots” for metals and VOCs to save money on sample collection. 
Other commenters wrote in to say that TRI has formed the basis for
successful partnerships between communities and facilities, resulting in
the facilities being viewed as good neighbors rather than enemies.  One
commenter wrote that TRI has informed first responders, and led to
several facilities extending their extended in-plant response to
surrounding schools, senior centers, homes and other vulnerable
populations.  The Waterkeeper Alliance stated that many of their
programs around the country would be frustrated by the current proposal
(program details provided in submission).

The Lowell Center for Sustainable Production wrote that EPA has for
years rightly stated that the TRI has been one of its most
cost-effective policies and a powerful driver of pollution prevention. 
Many leading companies, which have been strong TRI supporters, would
argue similarly.  TRI has been one of the most effective tools to
empower community residents to engage proactively with companies to
identify opportunities for prevention solutions.  With less information
comes less opportunity for community involvement, defeating the goals of
multi-stakeholder engagement and voluntary collaborative efforts that
are critical to the EPA mission.  US PIRG cited OMB Watch’s website
http://www.ombwatch.org/tricenter/TRIsuccess.html, which lists
successful examples of community empowerment using TRI data, and
provided a list (in an attached appendix) of chemicals that would no
longer be reported in each state.

Another commenter stated that since the cumulative amount of such toxins
in any community determines the public health hazard, it makes no sense
to treat smaller individual releases as if they were insignificant.  A
physician wrote that community toxic releases play an important part in
many people’s state of health, and are an important part of making a
correct diagnosis, so more, not less, information on local releases is
needed.  The NH Coalition for Occupational Safety & Health wrote that
employee safety concerns about hazardous chemicals do not end at plant
gates; just as OSHA regulations entitle workers to information about
their on-the-job exposure to toxic substances, EPA should ensure that
they can learn how the same substances endanger them and their families
when released in the community.  The AFL-CIO and several other
organizations wrote that the proposal would hamper the ability of
workers to assess the safety of their workplaces.

Another commenter was concerned about land application of the nation's
sewage sludge becoming even more risky.  Seen in conjunction with the
recent weakening of pretreatment requirements for industries that
discharge their hazardous waste into sewage systems, withholding
important data will make it almost impossible to determine the toxicity
of sludge that is land-applied on our nation's farms.

 

The Delaware Department of Natural Resources and Environmental Control
stated that an analysis using 2004 data shows that about 35% of
Delaware's Form R reports and 29% of our PBT reports would become
eligible for Form A reporting under the proposed threshold increase, and
while these amounts may be relatively small when compared to the overall
totals, these numbers represent important information to citizens in the
communities where these facilities operate.

The Inter-Tribal Fish Commission stated that although EPA has also
acknowledged its obligation under Executive Order 12898 to ensure that
no population segment will bear an undue amount of adverse human health
based on the agency's policies, tribal members will bear a
disproportionately high risk of harm to their health from a less robust
TRI, because of their higher level of fish consumption.  EPA has erred
in making the focus of this proposed rule change one of burden reduction
for industrial facilities.  In doing so, the EPA eliminates public
access to currently available data and removes the responsibility of
data disclosure from the facilities that generate these industrial
pollutants.  This shift will undermine ongoing efforts by member tribes
to safeguard tribal health and the treaty-secured resources from toxic
contaminants.

Response:

With regard to the PBT portion of the rule, because the proposed rule as
well as the final rule requires zero releases for PBT chemical Form A
eligibility, there will be no loss of detailed PBT release information. 
For all 2,360 PBT chemical forms expected to qualify for Form A under
this rule, communities and other data users will know that the facility
had zero releases to the environment of the PBT chemical and between
zero and 500 pounds of other waste management.  Thus, the Form A serves
as a range report, which informs the public that other waste management
of the PBT chemical is 500 pounds or less.  For chemicals such as lead
and mercury, where the only possible waste management activities are
releasing and recycling the chemical, a Form A filed pursuant to this
rule for either of these chemicals means the facility may have no more
than 500 pounds of recycling.  

With regard to the non-PBT portion of the proposal, EPA has carefully
considered the concerns raised about the impact the proposal could have
on uses of the data.  Commenters opposed to the proposed 5,000-pound ARA
contend that it is at the local level that a 5,000-pound Form A range of
waste management information, and in particular, release information,
will adversely impact the ability to perform trend analyses, monitor the
performance of individual facilities and engage facilities in meaningful
dialogue, and more generally, meet the intended purpose of the data
collection to inform the public, government, and other data users about
releases of toxic chemicals to the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  Under this rule, each Form A continues to serve
as a range report, informing the public that total releases is in the
range of zero to 2,000 pounds.  By placing a 2,000-pound limit on the
amount of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden relief while at
the same time providing valuable information to the public consistent
with the goals and statutory purposes of the TRI program.

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As. 

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities. 

Moreover, Executive Order 13175, entitled “Consultation and
Coordination with Indian Tribal Governments” (65 FR 67249, November 6,
2000), requires EPA to develop an accountable process to ensure
“meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.”  “Policies that
have tribal implications” is defined in the Executive Order to include
regulations that have “substantial direct effects on one or more
Indian tribes, on the relationship between the Federal Government and
the Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.”  This rule does not
have tribal implications.  It will not have substantial direct effects
on tribal governments, on the relationship between the Federal
government and Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes, as
specified in Executive Order 13175. 

 (1) Potential loss of all data for a facility or all facilities in a
local community

Summary of Comments (by Abt):

Thirteen unique comments representing 10,445 commenters expressed
general opposition to the proposed rule because of the potential loss of
all data for a facility or for all facilities in a local community.  OMB
Watch cited an analysis conducted by the National Environmental Trust
(NET), which showed that almost 4,000 facilities would be able to stop
reporting all details on release and disposal of toxic pollution under
the current proposal.  In addition, the changes would mean that more
than 900 communities—one out of ten that have TRI reporting
facilities—would lose all numerical data on toxic pollution in their
area.  The analysis also estimates that 2,364 communities would lose
information on half of the TRI chemicals released or disposed of in
their area.  The US PIRG Education Fund included additional tables and
appendices in their submission.  

Several private citizens wrote in about the potential data loss in their
state or community.  For instance, one commenter wrote that of the 25
reporting facilities in his zip code, half would disappear from the list
with the proposed changes.  Of the facilities that would no longer
report, half have been found to be in violation of their air permits and
have emitted dangerous levels of toxic air pollutants.  The Delaware
Department of Natural Resources and Environmental Control stated that
21% of TRI facilities in Delaware would no longer be required to report
any numerical data to the program.  Groups from other states reported
the number of facilities that would no longer have to report detailed
information: 216 facilities in Pennsylvania, 30 facilities in New
Hampshire (leaving 7 communities with no numerical data and 29 with some
data loss), and 90 facilities in New Jersey.  Work Environment Council
of New Jersey wrote that this includes the Saint-Gobain plant in
Mickleton, which reported the release of 137,928 pounds of toxic
chemicals into the environment in 2003 and is the 16th worst facility
for releasing toxic chemicals in the state.

Frank Pallone and 56 other members of the US House of Representatives
wrote that under these changes every community in 64 different
California zip codes, 27 zip codes in New Jersey, and 27 zip codes in
Illinois, could lose access to all detailed information about local
facilities, and more than 22,000 detailed release forms would be lost
entirely, leaving more than 2000 communities - many low-income or
minority - without critical information affecting residents.

Several Attorneys General (of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI) wrote that the States do not agree that the proposed rule will
have a "minimal impact" on TRI reporting simply because in the aggregate
the proportion of lost reporting may be small. One of the principal
purposes of TRI reporting is to help communities address local problems,
and EPA has not done sufficient analysis to demonstrate that the
proposed rule would not create local "black holes" and "blind spots"
that would interfere with achievement of this purpose.  EPA itself has
noted that over 1100 ZIP codes would lose all TRI reporting, and the
Cytec Olean example from New York State [see comment in outline topic
V.2.B.ii.b.] suggests that the loss of TRI data in those and other areas
could significantly impede a community's ability to protect
schoolchildren and others from possible emergencies arising out of toxic
chemical use. EPA has not demonstrated that range reporting for PBT
chemicals is any more appropriate now than when EPA rejected it several
years ago.

Response:

EPA recognizes that while the detailed Form R information for the
approximately 14 million pounds of releases estimated by EPA to be
eligible for Form A under the proposal represents information on less
than 1% of total TRI releases nationwide, at the local level the impact
is much more pronounced.  As discussed in the preamble to the proposed
rule, under the proposed 5,000-pound Form A threshold for non-PBTs, 26
TRI chemicals could move to all Form A reporting and 655 Zip codes with
at least one TRI facility (approximately 7% of all Zip codes with a TRI
facility) could move to all Form A reporting.  Commenters have expressed
concern about the move to less detailed TRI information at the local
level.  While some information may be available from other sources, data
users cannot look to other readily accessible sources to replace all of
the information provided on Form R. 

Accordingly, in response to concerns over the loss of detailed Form R
waste management information and in particular, the loss of local level
information on specific quantities released by media, EPA has decided to
modify the proposed 5,000-pound “Annual Reportable Amount” (ARA) by
placing a 2,000-pound limit on releases of non-PBT chemicals being
considered for Form A.  In other words, in order for a facility to use
the Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  Under this
rule, each Form A continues to serve as a range report, informing the
public that total releases is in the range of zero to 2,000 pounds.  By
placing a 2,000-pound limit on the amount of releases that may be
applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total release pounds that would no longer be
reported on Form R under the proposed rule at full utilization of Form A
and at the same time, this rule preserves almost 80% of the burden
reduction offered by the non-PBT portion of the proposed rule.  

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of detailed release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden relief while at the same time providing valuable information to
the public consistent with the goals and statutory purposes of the TRI
program.

With regard to the PBT portion of the rule, because the proposed rule as
well as the final rule requires zero releases for PBT chemical Form A
eligibility, there will be no loss of detailed PBT release information. 
For all 2,360 PBT chemical forms expected to qualify for Form A under
this rule, communities and other data users will know that the facility
had zero releases to the environment of the PBT chemical and between
zero and 500 pounds of other waste management.  Thus, the Form A serves
as a range report, which informs the public that other waste management
of the PBT chemical is 500 pounds or less.  For chemicals such as lead
and mercury, where the only possible waste management activities are
releasing and recycling the chemical, a Form A filed pursuant to this
rule for either of these chemicals means the facility may have no more
than 500 pounds of recycling.  

Further, in consideration of the rule’s impact at the local level,
commenters should keep in mind the current Form A utilization rate. 
Specifically, the Agency has observed that only slightly over half of
the forms (54%) potentially eligible for Form A use take advantage of
that option.  The Agency believes there are a number of potential
reasons for this utilization rate, including the desire to showcase
pollution prevention efforts on Form R and the desire to demonstrate
good environmental stewardship.  Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization is likely to be
significantly higher at a 5,000-pound ARA with a 2,000-pound release
limit for non-PBTs or at a 500-pound ARA with a zero release requirement
for PBTs than it has been to date at the 500-pound ARA threshold for
non-PBTs.

b. Reduced reporting will hamper efforts in spill/disaster situations

Summary of Comments (by Abt):

25 unique comments representing 46,768 commenters expressed general
opposition to the proposed rule because the reduced reporting will
hamper efforts to deal with spills or other disaster situations.  Most
commenters mentioned the Katrina and/or Rita disasters, and how
important TRI data has been in assessing the potential for water
contamination in the affected areas.  

One commenter wrote that TRI reports are valuable for fire and emergency
personnel and that, when they were first required, many first responders
said this data was the most comprehensive and up-to-date they had seen
on the amounts of toxic materials being stored and used in their areas. 
Other commenters wrote generally that reducing TRI data would threaten
the safety of first responders in any emergency (fire, spills, etc.).

Response:

With regard to PBTs there will be no loss of detailed PBT release
information as a result of this rule.  For all 2,360 PBT chemical forms
expected to qualify for Form A under this rule, first responders and
other data users will know that the facility had zero releases to the
environment of the PBT chemical and between zero and 500 pounds of other
waste management.  Thus, the Form A serves as a range report, which
informs the public that other waste management of the PBT chemical is
500 pounds or less.  Further, for some chemicals such as lead and
mercury, where the only possible waste management activities are
releasing and recycling the chemical, a Form A filed pursuant to this
rule for either of these chemicals means the facility may have no more
than 500 pounds of recycling.  

With regard to the non-PBT portion of the proposal, EPA has carefully
considered the concerns raised about the impact the proposal could have
on uses of the data.  In light of the concerns raised, EPA has decided
to modify the proposed 5,000-pound ARA by placing a 2,000-pound limit on
releases of non-PBT chemicals that are considered for Form A.  Under
this rule, each Form A continues to serve as a range report, informing
data users that total releases is in the range of zero to 2,000 pounds
and total waste management (which includes releases), is in the range of
zero to 5,000 pounds.  

Further, for both PBTs and non-PBTs EPA emphasizes that Form A provides
important information.  Form A informs data users that a facility is a
potential source of releases and other waste management activities.  TRI
data users are currently able to access Form A facility information via
Envirofacts and TRI Explorer (  HYPERLINK
"http://www.epa.gov/triexplorer"  http://www.epa.gov/triexplorer ).

Using EZ Query in Envirofacts (  HYPERLINK
"http://www.epa.gov/envirofacts"  http://www.epa.gov/envirofacts ), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As. 

In response to commenters’ concerns about being prepared for
emergencies, EPA points out that there are sections of EPCRA that
specifically address emergency planning and notification.  These
sections of EPCRA provide important information to responders and
communities.

c. Infringes on right-to-know

Summary of Comments (by Abt):

213 unique comments representing 66,407 commenters expressed general
opposition to the proposed rule because reducing the responsibility of
facilities to report their emissions violates the public’s
right-to-know about toxics in their communities.  Most commenters stated
that the public has an absolute right to know what is being released,
and that this right should not be sacrificed for burden reduction.  One
commenter compared citizens’ right-to-know with that of employees: if
employees have a right-to-know about what chemicals and hazards they
work around at their job sites, then citizens should be offered the same
when "releases" happen.  The commenter also stated that citizens are
exposed to chemicals longer than workers, and are generally not offered
any safety equipment to mitigate or prevent exposure.  The U.S. PIRG
Education Fund wrote that the public has expressed overwhelming support
for TRI, and for their right-to-know about pollution generally.  

Response:

EPA disagrees with commenters that this rule violates the public’s
right-to-know.  With regard to PBTs there will be no loss of detailed
PBT release information as a result of this rule.  For all 2,360 PBT
chemical forms expected to qualify for Form A under this rule, first
responders and other data users will know that the facility had zero
releases to the environment of the PBT chemical and between zero and 500
pounds of other waste management.  Thus, the Form A serves as a range
report, which informs the public that other waste management of the PBT
chemical is 500 pounds or less.  Further, for some chemicals such as
lead and mercury, where the only possible waste management activities
are releasing and recycling the chemical, a Form A filed pursuant to
this rule for either of these chemicals means the facility may have no
more than 500 pounds of recycling.  

With regard to the non-PBT proposal, EPA has carefully considered the
concerns raised about the impact the proposal could have on the
provision of valuable information to the public consistent with the
goals and statutory purposes of the TRI program.  Commenters opposed to
the proposed 5,000-pound ARA contend that it is at the local level that
a 5,000-pound Form A range of waste management information, and in
particular, release information, will adversely impact the ability to
perform trend analyses, monitor the performance of individual
facilities, and more generally, meet the intended purpose of the data
collection to inform the public, government, and other data users about
releases of toxic chemicals to the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  Under this rule, each Form A continues to serve
as a range report, informing the public that total releases is in the
range of zero to 2,000 pounds and therefore, Form A continues to obtain
reporting on a substantial majority of total releases of every
TRI-listed chemical at all facilities as required be EPCRA § 313(f)(2).
 42 U.S.C. § 11023(f)(2).  By placing a 2,000-pound limit on the amount
of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden relief while at
the same time providing valuable information to the public consistent
with the goals and statutory purposes of the TRI program.

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

d. Affects use for investment research

Summary of Comments (by Abt):

28 unique comments representing 3,414 commenters expressed general
opposition to the proposed rule because the proposed reduction in data
collected would affect the use of TRI for investment research.  Many
individuals and associations engaging in socially responsible investing
commented that TRI is a unique data source that is widely used in the
field.  The Social Investment Research Analysts Network (SIRAN) wrote
that current financial disclosure requirements do not reveal all of the
risks, liabilities, or advantages associated with a corporation's
environmental performance, and TRI data provides information that is
crucial to making informed investment decisions that often cannot be
found anywhere else.  For instance, TRI data can help identify companies
that have a competitive advantage in using materials more efficiently
than their competitors, and flag companies at greater risk of liability
claims from pollutant releases.  As a result, TRI data is often a key
input in models many SIRAN members use to make important investment
decisions every day.  TRI data provided an early foundation for the
entire field of social investment research and benchmarking of corporate
environmental performance.  Socially responsible investing now
represents one of the fastest growing segments of the financial industry
and a growing number of institutional investors are recognizing the
materiality of environmental performance in investing decisions.  Walden
Asset Management wrote that TRI data analysis has provided a meaningful
basis for Walden to engage collaboratively with companies on avenues to
improve their environmental performance.

Other commenters stated that traditional investment interests (not
specifically socially-responsible) are also increasingly using TRI to
investigate environmental liabilities.  One corporate researcher also
wrote that he and his firm depend on the TRI to understand the risks and
opportunities that companies are dealing with.  Market forces can only
work effectively when all parties share information.  EPA's proposal
will almost certainly undermine confidence in the markets.  The effect
is uncertainty, and markets hate uncertainty.

Ceres (an investment association) made the same points made by SIRAN and
added that investors want to know about potential problems as early as
possible, and EPA’s proposal will make it harder for asset managers or
fiduciaries to exercise proper diligence.  Given the recent scandals
caused by insufficient disclosure of important information, EPA’s
proposal is a step backward.  Another commenter added that although
Regulation S-K promulgated by the Securities and Exchange Commission
(SEC) requires disclosure of certain environmental information, numerous
studies have found that compliance with this regulation has been
minimal.  A 2004 Government Accountability Office study noted that
because company records "are generally not publicly available, it is
virtually impossible for an external party to know what information
companies should be disclosing."

Response:

With regard to concerns about the rule’s impact on use of TRI data for
research and analysis, EPA encourages commenters to consider the
following points.

First, with regard to PBT chemicals there will be no loss of detailed
PBT release information as a result of this rule.  For all 2,360 PBT
chemical forms expected to qualify for Form A under this rule,
researchers and other data users will know that the facility had zero
releases to the environment of the PBT chemical and between zero and 500
pounds of other waste management.  Thus, the Form A serves as a range
report, which informs the public that other waste management of the PBT
chemical is 500 pounds or less.  Further, for some chemicals such as
lead and mercury, where the only possible waste management activities
are releasing and recycling the chemical, a Form A filed pursuant to
this rule for either of these chemicals means the facility may have no
more than 500 pounds of recycling.  

Second, in response to concerns about the proposed rule’s impact to
local data uses, EPA has decided to modify the proposed 5,000-pound ARA
for non-PBTs by placing a 2,000-pound limit on releases of non-PBT
chemicals that are considered for Form A.  Under this rule, each Form A
continues to serve as a range report, informing the public, researchers,
and other data users that total releases is in the range of zero to
2,000 pounds and that total waste management (which includes releases),
is in the range of zero to 5,000 pounds.

Third, Form A provides important information.  TRI data users are
currently able to access Form A facility information via Envirofacts and
TRI Explorer (http://www.epa.gov/triexplorer) in the same manner that
Form R facility information is accessed.  Form A informs data users that
a facility is a potential source of releases and other waste management
activities.  Using EZ Query in Envirofacts
(http://www.epa.gov/envirofacts), data users are able to access
individual chemical Form As along with the TRI Facility Identification
Numbers (TRIFIDs) and the names of facilities submitting Form As.  

Finally, the Agency has observed that only slightly over half of the
forms (54%) potentially eligible for Form A use take advantage of that
option.  The Agency believes there are a number of potential reasons for
this utilization rate, including the desire to showcase pollution
prevention efforts on Form R and the desire to demonstrate good
environmental stewardship.  Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization is likely to be
significantly higher at a 5,000-pound ARA with a 2,000-pound release
limit for non-PBTs or at a 500-pound ARA with a zero release requirement
for PBTs than it has been to date at the 500-pound ARA threshold for
non-PBTs.

e. Affects trends analysis and/or use for academic research

Summary of Comments (by Abt):

Fifteen unique comments representing sixteen commenters expressed
general opposition to the proposed rule because the reduction in data
collected would affect the use of TRI for trends analysis or for other
academic research.  

Several commenters wrote that changing the reporting requirements would
make it difficult to make comparisons across years.  One commenter wrote
that the proposal would make studies of the TRI data and trends
statistically invalid.  The American Association for the Advancement of
Science wrote that TRI data have been invaluable for researchers in many
disciplines, as TRI provides the main (and often only) longitudinal data
set on facility emissions.  The EPA report “How Are the Toxics Release
Inventory Data Used?” states that TRI has become "a powerful tool for
many environmental analyses and understanding the many factors that
contribute to human health and environmental conditions."  This loss of
data would compromise environmental and public health research,
eliminating critical data for research in many communities and creating
a discontinuous data set for those analyzing long-term trends. This
would threaten the ability of researchers to identify and understand
potential threats to the environment and public health in a
scientifically rigorous manner.  It also would, in turn, negatively
affect both policymakers and the public who depend on this research for
their own decisionmaking.

The Delaware Department of Natural Resources and Environmental Control
wrote that changing the basis for reporting will make comparisons
difficult, if not meaningless. Delaware actively collects,
manages/analyzes, and publicly distributes TRI data, using actual
amounts of releases, not just a count of reports, to report chemical
releases and other activity at the facilities, and actual amounts of
releases must also be used in most analyses of how chemicals may affect
communities.  In order to make meaningful comparisons between years and
to evaluate progress, there needs to be a consistent year-to-year basis
for reporting.

Other commenters wrote generally that TRI data was crucial in their
research, and that any attempt to reduce it would imperil their work. 
One commenter wrote that many researchers were using the data in ways
that can inform enforcement decisions and help achieve EPA's goal of
reducing risk in a cost-efficient manner.  Another commenter wrote that
this information is needed for understanding the contaminant loading of
our environment for issues that go far beyond merely "blaming" an
industry or litigation; it is needed as a data source that enables
exploratory data analysis and illuminates the interactions between
various chemicals in the environment and the species that encounter
them.  

Several commenters wrote about using TRI to correlate emissions with
epidemiological data.  One commenter wrote that she has been working on
a GIS research project with a major medical center and university to
document asthma hospitalization rates versus proximate sources of mobile
and point source air pollution emissions.  Another commenter wrote that
it was so important to be able to do these kinds of studies that it
trumped industry’s understandable desire to minimize expenses.

Response:

With regard to concerns about the rule’s impact on use of TRI data for
research and analysis, EPA encourages commenters to consider the
following points.

First, with regard to PBT chemicals there will be no loss of detailed
PBT release information as a result of this rule.  For all 2,360 PBT
chemical forms expected to qualify for Form A under this rule,
researchers and other data users will know that the facility had zero
releases to the environment of the PBT chemical and between zero and 500
pounds of other waste management.  Thus, the Form A serves as a range
report, which informs the public that other waste management of the PBT
chemical is 500 pounds or less.  Further, for some chemicals such as
lead and mercury, where the only possible waste management activities
are releasing and recycling the chemical, a Form A filed pursuant to
this rule for either of these chemicals means the facility may have no
more than 500 pounds of recycling.  

Second, in response to concerns about the proposed rule’s impact to
local data uses including trend analysis, EPA has decided to modify the
proposed 5,000-pound ARA for non-PBTs by placing a 2,000-pound limit on
releases of non-PBT chemicals that are considered for Form A.  Under
this rule, each Form A continues to serve as a range report, informing
the public, researchers, and other data users that total releases is in
the range of zero to 2,000 pounds and that total waste management (which
includes releases), is in the range of zero to 5,000 pounds.  Further,
because this rule affects less than 1% of national release and other
waste management information reported to TRI, EPA does not believe this
rule will have a significant impact on national trend analysis. 

Third, Form A provides important information.  TRI data users are
currently able to access Form A facility information via Envirofacts and
TRI Explorer (http://www.epa.gov/triexplorer) in the same manner that
Form R facility information is accessed.  Form A informs data users that
a facility is a potential source of releases and other waste management
activities.  Using EZ Query in Envirofacts
(http://www.epa.gov/envirofacts), data users are able to access
individual chemical Form As along with the TRI Facility Identification
Numbers (TRIFIDs) and the names of facilities submitting Form As.  

Finally, the Agency has observed that only slightly over half of the
forms (54%) potentially eligible for Form A use take advantage of that
option.  The Agency believes there are a number of potential reasons for
this utilization rate, including the desire to showcase pollution
prevention efforts on Form R and the desire to demonstrate good
environmental stewardship.  Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization is likely to be
significantly higher at a 5,000-pound ARA with a 2,000-pound release
limit for non-PBTs or at a 500-pound ARA with a zero release requirement
for PBTs than it has been to date at the 500-pound ARA threshold for
non-PBTs.

f. Affects use of data in other regulatory programs/policy-setting

Summary of Comments (by Abt):

42 unique comments representing 63 commenters expressed general
opposition to the proposed rule because the proposed reduction in data
collected would affect the use of TRI in regulatory programs and policy
setting.  The US PIRG Education Fund cited EPA’s report “How Are the
Toxics Release Inventory Data Used?” which documents a variety of uses
by the public, academics, industry, and state governments.  In the
report, EPA points to twenty different state governments that use the
TRI program for environmental targeting, risk assessments, regulations,
legislation, quality assurance and control, and other uses (Appendix
listing uses by state government provided with submission).  The
Commonwealth of Massachusetts’ Toxics Use Reduction Act Program wrote
that TRI data has proven to be very valuable to state agencies for
targeting enforcement and compliance assistance efforts.  Reducing the
amount of information available to government agencies will reduce the
ability to target efforts to where they can make the most difference. 
Another commenter wrote that state P2 programs that analyze the TRI data
by applying toxicity values will lose the information on certain
chemicals that may be of concern in their state.  In some cases, these
chemical releases rank among the most toxic in the state.

The North American Hazardous Materials Management Association also
provided a list of TRI-supported programs that will be undercut by the
current proposal: technical assistance and pollution prevention
programs; environmental monitoring programs; environmental health
monitoring programs; programs to evaluate the effectiveness of public
and private sector toxic reduction initiatives; university and
community-based research; and community efforts to monitor particular
facilities.

Many state agencies described the programs supported by TRI data, and
the importance of TRI to accomplishing their pollution prevention goals:

-Florida’s Waste Reduction Assistance Program (WRAP) uses TRI data to
determine which facilities should be targeted for inclusion in their
program, which helps facilities reduce their waste of TRI chemicals. 

-New Hampshire plans to use TRI data to inform debate regarding C+D
incineration and PBT releases.

-Oklahoma DEQ would lose all data on source reduction and other
pollution prevention measures for 65% of total TRI submissions.

-Delaware uses TRI as a component of its of Environmental Management
Systems (EMS).  Reductions in TRI numbers are often incorporated
directly into EMS goals. Pollution has been reduced as a direct result
of facility participation in the TRI program, and now is not the time to
turn back the clock on a successful program.

- Washington State has a well-regarded pollution-prevention-planning
program. Under the program, the state helps businesses reduce their
waste and emissions.  Experts from Department of Ecology for the State
of Washington offer technical assistance that not only improves
environmental quality but improves the functioning and bottom line of
the companies in the program.  Technical-assistance employees rely
heavily on data collected through the Form R in TRI.  If more facilities
use Form A, information that can provide understanding of the successes
of the program will be lost from nearly 14 percent of the companies. 
TRI data is also consulted prior to site visits so that Ecology
employees know what personal-protection equipment to bring.  If there is
a decrease in information from facilities that have small, but high-risk
releases, data necessary for staff safety will be missing.  

-Maine has a Toxics Reduction Program centered on public accountability,
and this proposal would significantly curtail what the public can
review.  The proposed changes would result in Maine losing almost 70% of
its TRI inventory; in effect, Maine will lose the ability to track 70%
of its Toxic Release data.

-Oregon's Toxics Use Reduction and Hazardous Waste Reduction Act applies
to large and small quantity generators of hazardous waste and to
companies required to submit uniform toxic chemical release forms.  DEQ
collects detailed information from generators annually and relies on the
annual TRI data set to identify companies subject to the Act.  Raising
the reporting thresholds will mean that a number of smaller companies
who would likely benefit from reducing their use of toxics will not be
identified as toxics users.

Local officials also wrote regarding the importance of TRI to their
work, including a member of a Local Emergency Planning Committee in
California, and a member of the Hamden Community Council in Baltimore,
MD who wrote that TRI will be used in the community master plan
development.

A professor from Tuck School of Business at Dartmouth College wrote that
TRI, as a longitudinal database, allows use of powerful statistical
techniques.  As a result, researchers are uncovering accurate
information about the consequences of business policies and government
regulation.  Changing the rules will make policy-making much more
unpredictable.  It will mean that both business managers and policy
makers will have inadequate information, and new rules will end up
costing both business and government more money.

A former Region 1 administrator, now affiliated with Ceres, wrote that
these rule changes are a step backwards for the EPA, and seem to run
counter to many of the programs that have been established to reduce the
very same toxins covered by the TRI.  These programs include the
National Environmental Performance Track Program (designed to recognize
and encourage top environmental performers who go beyond compliance with
regulatory requirements), the National Waste Minimization Partnership
Program (which encourages state and local governments, manufacturers,
other companies, and NGOs to reduce the generation of hazardous wastes),
the Sector Facility Indexing Project (which provides comprehensive
information on the environmental performance of hundreds of facilities
in five major industries), and the Environmental Accounting Project (a
voluntary program to encourage and motivate business to understand the
full spectrum of their environmental costs, and integrate these costs
into the decision making process).

Response:

In response to concerns over the loss of detailed Form R waste
management information and in particular, the loss of local level
information on specific quantities released by media, EPA has decided to
modify the proposed 5,000-pound “Annual Reportable Amount” (ARA) by
placing a 2,000-pound limit on releases of non-PBT chemicals being
considered for Form A.  In other words, in order for a facility to use
the Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  Under this
rule, each Form A continues to serve as a range report, informing the
public, government, and other data users that total releases is in the
range of zero to 2,000 pounds.  By placing a 2,000-pound limit on the
amount of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of detailed release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden relief while at the same time providing valuable information to
the public consistent with the goals and statutory purposes of the TRI
program.

With regard to the PBT portion of the rule, because the proposed rule as
well as the final rule requires zero releases for PBT chemical Form A
eligibility, there will be no loss of detailed Form R PBT release
information.  For all 2,360 PBT chemical forms expected to qualify for
Form A under this rule, communities and other data users will know that
the facility had zero releases to the environment of the PBT chemical
and between zero and 500 pounds of other waste management.  Thus, the
Form A serves as a range report, which informs the public that other
waste management of the PBT chemical is 500 pounds or less.  For
chemicals such as lead and mercury, where the only possible waste
management activities are releasing and recycling the chemical, a Form A
filed pursuant to this rule for either of these chemicals means the
facility may have no more than 500 pounds of recycling.  

B. Lessens incentive for companies to improve environmental performance

Summary of Comments (by Abt):

74 unique comments representing 2,994 commenters expressed general
opposition to the proposed rule because the proposed reduction in data
collected would lessen the incentive for companies to improve their
environmental performance.  Many commenters wrote that corporations
could not be trusted to be good environmental citizens or even be
responsible without the discipline or potential negative consequences
that come with detailed public reporting.  Many commenters said that
raising the non-PBT threshold is just giving companies license to
release ten times more toxics.  

Several commenters wrote that they currently or previously worked at
TRI-reporting facilities and saw how much impact TRI had on their
company’s emissions.  One commenter wrote that she was a solid waste
coordinator in Kentucky for 12 years and had first hand experience with
TRI reports that impacted decisions made by the county when inviting
other industries to locate there, as well as specific cases where
companies saved substantial amounts of money by changing industrial
processes to reduce releases.

Several commenters stated that TRI should not be weakened, as it is a
perfect tool for voluntary improvement, and is cost-effective in both
communicating information and providing incentives to reduce emissions. 
OMB Watch and other commenters wrote that TRI has caused a
2.8-billion-pound reduction in toxic releases between 1998 and 2003. 
The World Resources Institute wrote that TRI has done more for the U.S.
environment than any other single piece of legislation.  TRI has
demonstrated that it is possible to build effective pollution prevention
programs without prescriptive regulation. The proposed revisions would
so broadly undercut the disclosures that TRI has required that the
promise of environmental protection without regulatory prescription
would essentially disappear.

The National Pollution Prevention Roundtable wrote that in some cases,
the chemical releases that will no longer be reported rank among the
most toxic in the state. Reducing reporting can remove the incentive for
industry to investigate safer alternatives.  It may lead to use of
costlier command and control approaches instead of cost-saving P2
remedies.

The Delaware Department of Natural Resources and Environmental Control
wrote that, while EPA has stated in a press release that the proposed
rule "provides new incentives to facilities to emit less,” the
proposed rule actually provides a significant disincentive.  Although
this proposal does provide a new incentive to facilities to emit less in
order to be able to take advantage of the shorter Form A if they can
reduce their PBT waste management totals below 500 pounds, it is at the
same time negative for non-PBT chemicals, in that the eligibility
threshold is being raised from 500 pounds to 5,000 pounds and thus does
not encourage facilities to reduce their emissions.  This second part
should be described as a "disincentive" to emit less, since facilities
currently falling under the 500-pound level would be able to increase
amounts up to the 5,000-pound level and still use the Form A. 
Considering the number of potential PBT Form A reports compared with the
number of non-PBT Form A reports, it would appear that the disincentive
aspect of the rule change could have a much larger impact than the
suggested incentive aspect.

The New Jersey Department of Environmental Protection wrote that EPA
provides the following example of the type of facility that will benefit
from the proposal: producer of ceramic materials, such as dishes and
cups, where 100% of the TRI chemical (in this case the lead in clay)
goes into the product. [70 Fed. Reg. 57839].  But EPA has also
identified lead in lead-glazed ceramic ware as one source of
contamination in foods and liquids stored in them.  Data from the Center
for Disease Control shows that 6% of all children ages 1-2 years and 11%
of black (non-Hispanic) children ages 1-5 years have blood lead levels
in the toxic range.  It is simply unbelievable that EPA would claim an
exacerbation of this severe public health crisis as a benefit of its
proposal.  [For details, see p. 12-13, Document ID 2235.2] 

The U.S. PIRG Education Fund provided an example of how TRI provides
incentives for companies to reduce their releases.  In 2000, AK Steel
Company’s Butler Works plant, located in Butler, Pennsylvania ranked
in TRI as the worst polluter in the country.  When the Pennsylvania
Public Interest Research Group released a report that highlighted the
high levels of nitrate compounds in nearby waters, the resulting
negative publicity and public pressure caused AK Steel changed its
processes to restrict the use of nitric acid and reduced its nitrate
discharges by 73%.  Within one year, the facility dropped from first to
third on the list of the nation’s largest water polluters.  Even more
remarkable is that this change by a single actor caused releases in
water in Pennsylvania to drop by more than 58% from 2000 to 2001.  In
the case of AK Steel, the TRI provided the

incentive to clean up, greatly reducing the amount of toxic chemicals
released in Pennsylvania and protecting public health. 

Response:

EPA disagrees with commenters that this rule will lessen the incentive
for companies to improve their environmental performance.  For PBTs the
Agency believes the proposed approach to expanded Form A eligibility may
result in decreased releases of these chemicals because it encourages
facilities to reduce their releases to zero.  By limiting PBT Form A
eligibility to zero releases and 500 pounds or less of other waste
management (i.e., recycling, energy recovery, and treatment for
destruction), EPA is encouraging facilities to eliminate releases of PBT
chemicals and reduce other waste management to below the 500-pound
limit.

In response to concerns that the proposed rule would lessen the
incentives for companies to improve their environmental performance
especially because the proposal allows 5,000 pounds of releases to
qualify for Form A, EPA has decided to modify the proposal by limiting
releases to 2,000 pounds.  EPA believes that this modification to the
proposal will act as an incentive for pollution prevention and
improvements in environmental performance.

By limiting the release portion of the 5,000-pound ARA to 2,000 pounds,
EPA is structuring the Form A eligibility criteria in a way that
promotes treatment and recycling over releases.  Such a structure is
consistent with national policy on pollution prevention.  Section
6602(b) of the Pollution Prevention Act of 1990 reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

By raising the recycling, treatment, and energy recovery portions of the
ARA to a 5,000-pound maximum, while capping releases at 2,000 pounds,
EPA has built into the Form A eligibility criteria an incentive for
facilities to move away from disposal and other releases toward
treatment and recycling.  Further, by including all waste management
activities in the Form A eligibility criteria EPA is encouraging
facilities above the 5,000-pound ARA to reduce their total waste
management in order to qualify for Form A.  EPA believes that this
approach to expanded Form A eligibility for non-PBT chemicals balances
burden reduction against the need to provide information consistent with
the goals and statutory purposes of the TRI program and at the same
time, promotes pollution prevention and recycling and treatment over
releases.  Similar to the PBT approach to expanded Form A eligibility,
the non-PBT approach to expanded Form A eligibility favors recycling,
treatment, and energy recovery over disposal and other releases.  This
tiered approach to expanded Form A eligibility is structured in a way
that encourages facilities to reduce their releases as compared to the
other waste management activities of recycling, treatment, and energy
recovery.

Further, with regard to the example about ceramics, EPA notes that
quantities of TRI chemicals incorporated into products such as ceramic
ware are not reported on Form R.  With regard to commenter’s AK Steel
example EPA reminds commenters that a facility must have no more than
2,000 pounds of releases of a non-PBT chemical in order to qualify for
Form A pursuant to this final rule.

C. Lessens companies' ability to track their chemicals

Summary of Comments (by Abt):

Fourteen unique comments representing 10,448 commenters expressed
general opposition to the proposed rule because the proposed reduction
in data collected would affect the use of TRI by the companies
themselves to track and understand their own chemical use and releases. 
Several commenters who wrote in either worked at or owned TRI-reporting
facilities and stated that the reporting process was helpful in
optimizing their production processes and reducing waste.  Calvert Group
(an investment association) wrote that their research points
conclusively to the fact that well-managed companies outperform
poorly-managed companies.  Well-managed companies use environmental data
to improve efficiency and competitiveness by eliminating waste and
pollution.  Well-managed companies report on their performance to
communities because they must continually earn their license to operate.
 

The New Jersey Department of Environmental Protection wrote that
facilities will find it more problematic to identify P2 opportunities,
set goals for release reductions, and measure their progress in reducing
emissions if there is a reduction in the details of the release data. 
If these proposed burden reductions were in effect in 2002, 146
facilities and more than 500,000 pounds of production-related waste
would not have been identified by industry in New Jersey for potential
reductions.  The US PIRG Education Fund wrote that industry leaders have
been very supportive of the TRI program.  The chemical industry in
particular has praised the success and intention of the program.  In
1990, Tom Ward, a representative of Monsanto Corporation, was quoted in
Iowa recognizing that “the law is having an incredible effect on
industries to reduce emissions, and that’s good.  There’s not a
chief executive officer around who wants to be the biggest polluter in
Iowa.”  In addition, US PIRG wrote that Ciba Geigy’s Corporate
Environmental Report released in 1993 reported that: “The initial
demand for environmental reporting came from the public.  But in
responding, we have discovered that the information is extremely useful
to our own management.  We have learned about our successes, our
inadequacies and the gaps in our knowledge.  It’s a good example of
the way in which external pressures ultimately prove to benefit both the
environment and to industry.”  Randy Hinton, of Vinings Industries in
Marietta, Georgia, even admitted in 1991 “in the long run it [the TRI
program] has saved us money."

Response:

Form A is voluntary.  A facility qualifying for Form A as a result of
this rule can decide to continue filing Form R reports if the facility
believes doing so is in its best interests (e.g., to make efficient use
of materials, to maintain good standing in the community).  To date,
many Form Rs that EPA receives on an annual basis appear to qualify for
Form A at the 500-pound threshold for non-PBTs.  In fact, EPA factored
this consideration into its decision-making for this rule. 
Specifically, the Agency has observed that only slightly over half of
the forms (54%) potentially eligible for Form A use take advantage of
that option.  The Agency believes there are a number of potential
reasons for this utilization rate, including the desire to showcase
pollution prevention efforts on Form R and the desire to demonstrate
good environmental stewardship.  Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization is likely to be
significantly higher at a 5,000-pound ARA with a 2,000-pound release
limit for non-PBTs or at a 500-pound ARA with a zero release requirement
for PBTs than it has been to date at the 500-pound ARA threshold for
non-PBTs.

D. Minimal burden reduction

Summary of Comments (by Abt):

33 unique comments representing 5,657 commenters expressed general
opposition to the proposed rule because it provides minimal burden
reduction.  Many commenters wrote that a small reduction in paperwork
was not worth a large reduction in public access to information. 
Several reasons were commonly given for why the burden reduction would
be very small, including that companies have compliance staff already in
place; that reporting is only a burden for the first reporting cycle-
most of the effort is in setting up the tracking system; and that
currently only half of the potentially eligible companies use Form A.  

Several commenters also said that the burden reduction would be minimal
because companies must still determine eligibility and maintain
evaluations for recordkeeping, so the burden reduction is only in the
actual filling out of the forms.  The New Jersey Department of
Environmental Protection similarly stated that, as discussed in the
proposal, for compliance purposes, facilities must maintain records of
threshold evaluations.  The environmental release, on-site waste
management and off-site waste transfer calculations must be made to
determine if a facility is subject to TRI reporting and to determine
whether to use Form R or Form A.  These proposed changes will make this
determination more complicated and confusing and, therefore, the burden
to industry to demonstrate compliance will increase.  Specific instances
of increased burden, confusion, and contradictory statements are
detailed in the submission.  [For details, see p. 6-8, Document ID
2235.2].  

A joint comment from the American Public Health Association and the
Children’s Environmental Health Network stated that recordkeeping
requirements wouldn't change under this proposal.  ("The current
recordkeeping requirements remain in effect.")  If facilities are
required to continue to collect this information, it does not make sense
to withdraw this currently-available information from the database.  The
Lowell Center for Sustainable Production agreed with these commenters
that the only burden reduction would be from filling out Form A instead
of Form R, and stated that the exercise of conducting the underlying
materials and release tracking is key to identifying materials
inefficiency and opportunities for prevention (and cost reduction).  It
would make no economic sense for a firm to fulfill its Form A
obligations without undertaking a more comprehensive toxics management
and releases tracking effort.  Thus, the proposed changes would not
reduce burden but rather simply reduce public access to data.

Several commenters also said that burden reduction would be minimal
because most companies have automated reporting systems.  The South
Carolina Department of Health & Environmental Control stated that even
though the majority of industry filers have been evolving towards
paperless environmental management systems for years, the proposed rule
will erase a third of the nation's chemical release reports in order to
relieve a minority of filers who, if they submitted their reports
electronically, would save the small fraction of time it takes to fill
out three additional sheets of paper.

The American Public Health Association and the Children’s
Environmental Health Network stated that the amount of time and
resources already expended by the Agency and the public interest
community on this proposal probably already exceeds the annual "savings"
that the Agency projects as a result of its proposed changes.  Most
importantly, these few hours are infinitesimal compared to the costs to
communities of clean up, health care, lost potential, lost wages,
damaged families, etc., that result from harmful chemical releases and
uses.  

A comment from several State Attorneys General (of NY, CA, CT, IL, IA,
MD, MA, NH, NJ, NM, VT, WI) stated that the amount of burden reduction
expected from the proposed rule is minimal at best.  EPA calculates that
the burden savings per form would amount to $430 for non-PBT chemicals
and $790 for non-dioxin PBT chemicals, a small amount either way. 
Applying these per form amounts to its estimate of the number of Form As
that would be completed, EPA calculates the aggregate burden reduction
as $5.24 million for non-PBT chemicals and $2.14 million for non-dioxin
PBT chemicals, for a total burden reduction of $7.38 million.  Figures
as low as this - only 4.3 percent of the total estimated reporting
burden - do not justify any change in reporting requirements.  Indeed,
$7.38 million represents only approximately 0.055 percent of the
chemical industry's 2004 profits of $13.5 billion, and thus a
vanishingly small portion of the industry's overall costs.

Response:

EPA does not agree with commenters that Form A provides minimal burden
relief for all facilities.  Specifically, EPA estimates that 6,670
facilities will be able to take advantage of the Form A burden savings
as a result of this rule.  For all facilities taking advantage of Form A
for a non-PBT chemical, the Agency estimates the burden savings to be
9.1 hours for each Form A completed in lieu of a Form R.  For all
facilities taking advantage of Form A for a PBT chemical, the Agency
estimates the burden savings to be 15.5 hours for each Form A completed
in lieu of a Form R.  For a detailed breakdown of the savings per Form
R, readers should refer to the economic analysis accompanying the rule. 
While this burden savings may not represent a significant savings for
all facilities eligible for Form A under the proposal, EPA believes that
Form A provides meaningful burden relief for some reporters such as
small facilities.  EPA also acknowledges that facilities with releases
and other waste management amounts well below the threshold for Form A
may be spared the burden of detailed calculations to determine
eligibility for Form A.  

E. Existing TRI burden reduction should be sufficient

Summary of Comments (by Abt):

Four unique comments representing five commenters expressed general
opposition to the proposed rule because EPA has already provided enough
burden reduction to industry, such as Form A itself, various
streamlinings of requirements, compliance assistance and training
programs, the electronic TRI-ME submittal mechanism, the July 2005
Reporting Forms Modification Rule, among others.  The Society of
Environmental Journalists stated that, whether or not companies
appreciate it, the burden reduction EPA has already given them is more
than enough.  

The South Carolina Department of Health & Environmental Control wrote
that, in publishing this proposed burden reduction, EPA is indicating to
states such as South Carolina that despite the burden reduction
achievements, they want to eliminate over a third of the state's annual
TRI chemical release data in favor of relieving a decreasing minority of
outdated paper filers in other states.  Basically, South Carolina loses
43% of their release reports so that paper filers elsewhere can be
relieved of the extra minutes of filling out three extra pieces of paper
- all of this in the face of a national campaign to achieve burden
reduction for all parties by doing away with paper forms.  [For details,
see p.2-3, Document ID 2365]

The American Public Health Association and the Children’s
Environmental Health Network wrote that the one million-pound alternate
threshold for Form A is already far higher than the defaults set by
Congress (25,000 pounds for manufacturing, 25,000 pounds for processing,
and 10,000 pounds for the otherwise use of a listed toxic chemical). 

Response:

EPA agrees with commenters that the Agency has already provided a
significant amount of compliance assistance and other measures to reduce
reporting burden.  This rule to expand Form A eligibility also reduces
reporting burden, but contrary to commenters contention that it does so
to the detriment of the program, this rule encourages facilities to
reduce their releases and ensures that valuable information will
continue to be provided to the public pursuant to the purposes of
section 313 of the Emergency Planning and Community Right-to-Know Act
(EPCRA) and section 6607 of the Pollution Prevention Act (PPA).

F. Reporting is a cost of doing business

Summary of Comments (by Abt):

50 unique comments representing 122 commenters expressed general
opposition to the proposed rule because reporting should be considered a
cost of doing business, and EPA should not seek to reduce the reporting
burden on industry.  Many commenters wrote that keeping track of
materials used and produced is good business practice and a well-run
company would compile an inventory even without the reporting
requirement.  Additionally, reducing requirements would afford an unfair
advantage to those companies that were not responsible with their
chemical use.  One commenter wrote that regulatory burdens should be
increased so that companies with the poorest controls of toxins are
driven out of business, while the companies that prevent toxin releases
are rewarded by the absence of fines, legal fees, and associated
administrative costs.  Another commenter stated that consumers value
this type of information and it can help the market economy function
better, by allowing consumers to preferentially choose less polluting
companies.  In a similar vein, an industry chemist wrote that all levels
of management of the firms in which the commenter was employed stressed
maximum safety with respect to workers, customers, and the surrounding
community, and welcomed reporting regulations that made it more likely
that everyone, including competitors, were following the same rules.

An economist wrote that pollution abatement and monitoring should be
built into the prices charged by various companies.  Someone at some
point will have to pay for this (superfund cleanup, hospital admission
increases, decrease in property values). As much as possible we should
ascribe directly to the source these costs.  And it will also help when
the property is sold that future buyers will know what they are getting
into.

Several commenters wrote that the "burden" currently placed on
industries by TRI reporting requirements is not an undue one but rather
a fair trade-off for the privilege of conducting operations the way they
do.  If industries feel that the reporting burden is too great, they
should work to develop processes that require less toxic chemicals.

OMB Watch wrote that there appears to be a widely-shared opinion, even
among those in the industry sector, that the reporting requirements
under the TRI program are not burdensome.  According to numerous
newspaper reports on the EPA's proposed changes to TRI that OMB Watch
has monitored, many company representatives have gone on the record
describing the importance of the TRI program and the little effort
reporting actually takes.  Some companies go so far as to say that they
will continue reporting the full amount of data even if the changes go
into effect because such information serves as a public good and serves
the company's best interests [also provided in submission is a selection
of statements from companies across the country].

Response:

EPA reminds those commenters concerned that this rule will detract from
good business practices that Form A is voluntary.  A facility qualifying
for Form A as a result of this rule can decide to continue filing Form R
reports if the facility believes doing so is in its best interests
(e.g., to make efficient use of materials, to maintain good standing in
the community).  To date, many Form Rs that EPA receives on an annual
basis appear to qualify for Form A at the 500-pound threshold for
non-PBTs.  In fact, EPA factored this consideration into its
decision-making for this rule.  Specifically, the Agency has observed
that only slightly over half of the forms (54%) potentially eligible for
Form A use take advantage of that option.  The Agency believes there are
a number of potential reasons for this utilization rate, including the
desire to showcase pollution prevention efforts on Form R and the desire
to demonstrate good environmental stewardship.  Regardless of the
factors that prompt facilities to use Form R when they may be eligible
for Form A, the Agency does not believe the rate of Form A utilization
is likely to be significantly higher at a 5,000-pound ARA with a
2,000-pound release limit for non-PBTs or at a 500-pound ARA with a zero
release requirement for PBTs than it has been to date at the 500-pound
ARA threshold for only non-PBTs.

G. Environmental justice concerns

Summary of Comments (by Abt):

Seventeen commenters expressed general opposition to the proposed rule
because of environmental justice concerns.  The North American Hazardous
Materials Management Association stated that the lack of scrutiny and
lack of access will fall most heavily on the poorest, who live in the
same neighborhoods as many of these facilities.  A recent study found
that black Americans are 79% more likely than whites to live in
neighborhoods where industrial pollution is suspected of posing the
greatest health risk.  It also found that residents in neighborhoods
with the highest pollution scores tended to be poorer, less educated,
and more often unemployed than those elsewhere in the country.  “Poor
communities, frequently communities of color but not exclusively, suffer
disproportionately,” according to former EPA Administrator Carol
Browner.  The proposed changes to the TRI reporting will make it more
difficult for this segment of the population, the poor and the
minorities, to protect their communities by impeding their right-to-know
about chemical management and toxic releases in their midst.

Response:

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities. 

Under Executive Order 12898, “Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,” EPA has
undertaken to incorporate environmental justice into its policies and
programs.  EPA is committed to addressing environmental justice
concerns, and is assuming a leadership role in environmental justice
initiatives to enhance environmental quality for all residents of the
United States.  The Agency’s goals are to ensure that:  (1) no segment
of the population, regardless of race, color, national origin, or
income, bears disproportionately high and adverse human health and
environmental effects as a result of EPA’s policies, programs, and
activities; and (2) all people are treated fairly and are given the
opportunity to participate meaningfully in the development,
implementation, and enforcement of environmental laws, regulations, and
policies. 

The TRI Program is an environmental information program.  While it
provides important information that may indirectly lead to improved
health and environmental conditions on the community level, it is not an
emissions release control regulation that could directly affect health
and environmental outcomes in a community.  The principal consequence of
today’s action will be to reduce the amount of detailed information
available on some toxic chemical releases or management.  However, as
pointed out in the previous discussion, the impacts will be very small
in terms of total national figures.  EPA believes that the data provided
under this rule will continue to provide valuable information that
fulfills the purposes of the TRI program.  By structuring Form A
eligibility for both PBT chemicals and non-PBT chemicals in a way that
favors recycling and treatment over disposal and other releases,
today’s rule encourages facilities to reduce their releases and
ensures that valuable information will continue to be provided to the
public pursuant to the purposes of section 313 of EPCRA and section 6607
of PPA.  Furthermore, only the non-PBT chemical portion of today’s
rule will have any effect on the reporting of chemicals released to the
environment.  The PBT chemical portion of this rule requires that
facilities reporting PBTs have no releases in order to be eligible for
Form A.  EPA does not have any evidence that this rule will have a
direct effect on human health or environmental conditions.  The Agency
has given careful consideration to the level of detail in the
information available to minority and low-income communities.  While
there is a higher proportion of minority and low-income communities in
close proximity to some TRI facilities than in the population generally,
the rule does not appear to have a disproportionate impact on these
communities, since facilities in these communities are no more likely
than elsewhere to become eligible to use Form A as a result of the rule.
 Results of the environmental justice assessment on the final rule are
available in the information docket.

H. Sets a poor precedent

Summary of Comments (by Abt):

Seven unique submissions representing eleven commenters expressed
general opposition to the proposed rule because it sets a poor
precedent, possibly leading to further weakening of domestic
environmental legislation, as well as setting a bad example for
developing countries who often use US regulation as a model.  The World
Resources Institute (WRI) wrote that the success of TRI serves as an
important model for Pollutant Release and Transfer Registers being
developed around the world.  The United States has been a pioneer in
this field, and US leadership has been critical in promoting improved
citizen access to environmental information.  WRI works with several
dozen partner organizations from Chile to Thailand to develop similar
instruments in other nations. With a critical mass of countries now
embarking on or committed to following this path, this is the wrong time
to signal a weakening of the US commitment to citizens' right-to-know.  

The International Relations Center wrote that the US, as a signatory to
the North American Free Trade Agreement and the North American Agreement
on Environmental Cooperation, is bound to improve its environmental
standards and harmonize them with the other signatory parties, Canada
and Mexico.  Relieving production facilities of their obligations to
report at current threshold levels would fly in the face of the North
American treaty responsibility, violating international law, and setting
a bad precedent for reciprocal treatment between partner countries.  In
addition, Mexico is on the verge of writing standards for its
long-awaited Pollutant Release and Transfer Register in which the issue
of thresholds for reporting is key, since never before has the country
had an industrial toxic waste inventory.  For the US to relax its
threshold tension would set a bad example, leading to under-reporting in
Mexico.

Response:

EPA has carefully considered commenters’ concerns that the proposed
rule would set a poor precedent for protecting public health, and would
sent the wrong message to other U.S. environmental programs,
international efforts promoting data comparability, and companies
looking to improve their environmental performance.  In response to
these concerns and other concerns raised in opposition to the proposal,
EPA has decided to modify the proposed 5,000-pound ARA by placing a
2,000-pound limit on releases of non-PBT chemicals being considered for
Form A.  By placing a 2,000-pound limit on the amount of releases that
may be applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total non-PBT release pounds that would no
longer be reported on Form R under the proposed rule at full utilization
of Form A and at the same time, this rule preserves almost 80% of the
burden reduction offered by the non-PBT portion of the proposed rule. 
EPA believes that this final rule approach to expanded Form A
eligibility for non-PBT chemicals strikes a better balance than the
proposed rule insofar as providing meaningful burden relief while at the
same time providing valuable information to all TRI stakeholders.

Further, because the rule requires zero releases for Form A eligibility
for PBT chemicals there will be no loss of detailed PBT release
information.  For all 2,360 PBT chemical forms expected to qualify for
Form A under this rule, data users will know that the facility had zero
releases to the environment of the PBT chemical and between zero and 500
pounds of other waste management.  Thus, the Form A serves as a range
report, which informs the public that other waste management of the PBT
chemical is 500 pounds or less.  

Furthermore, EPA has shown a strong commitment to working with the
governments of Canada and Mexico to improve Pollutant Release and
Transfer Register (PRTR) data comparability across North America.  The
TRI program is the U.S. PRTR system.  

With the assistance of Canada, Mexico, and the U.S., the Commission for
Environmental Cooperation (CEC) publishes the annual Taking Stock
report, which presents a picture of industrial pollution in North
America.  Taking Stock is based on a matched set of data derived from
the Pollutant Release and Transfer Registers (PRTRs) of Canada and the
United States, as well as selected data from Mexico.  For more
information on Taking Stock and other activities intended to improve and
harmonize PRTR data across North America visit the CEC website at:  
HYPERLINK "http://www.cec.org/home/index.cfm?varlan=english" 
http://www.cec.org/home/index.cfm?varlan=english .

I. Concerns about specific chemicals

Summary of Comments (by Abt):

Twenty-six commenters expressed general opposition to the proposed rule
because of concerns about specific chemicals.  The chemical mentioned
most frequently was mercury; many commenters expressed concerns about
eating contaminated fish, and one commenter specifically noted that
Nevada’s gold mining industry is responsible for 25% of the total
mercury air emissions west of Texas.  Other specific chemicals were
lead, benzene, arsenic, dioxins, furans, methanol, ammonia, toluene,
xylene, benzene, ethylbenzene, diisocyanates, dioxin, PCB's and PAH's.  

Most commenters wrote that they were suffering from contamination from
these chemicals already, and that reducing reporting requirements that
would take away their access to release information and result in
greater releases that would compound the problem.  The Delaware
Department of Natural Resources and Environmental Control stated that
100% of the numerical data in Delaware would be lost for 25 chemicals,
including naphthalene, toluene diisocyanate, tetrachloroethylene, and
formaldehyde, a known carcinogen.  Eighty percent of the reports for
methyl tert-butyl ether and three fourths of the reports for methyl
methacrylate could be converted to Form As.

Response:

Despite varying toxicity among the more than 600 non-PBT chemicals
subject to TRI reporting, EPA has decided to allow Form A to be
considered for all TRI-listed non-PBT chemicals.  By applying one set of
Form A eligibility criteria to all TRI-listed non-PBT chemicals EPA is
keeping Form A eligibility less complex than an approach that varies
across non-PBT chemicals.  EPA recognizes, however, that the TRI-listed
non-PBT chemicals include a wide range of chemicals with varying
toxicities and varying chemical characteristics.  This recognition as
well as all of the concerns raised about the loss of detailed TRI waste
management information under the proposed rule, and in particular, the
impacts from the loss of detailed Form R information on releases at the
local level, have led EPA to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals being
considered for Form A.  By placing a 2,000-pound limit on the amount of
releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this approach to expanded Form A
eligibility for non-PBT chemicals appropriately balances meaningful
burden relief from one Form A eligibility threshold for all non-PBT
chemicals against the requirement to provide the public and other data
users with information that is consistent with the goals and statutory
purposes of the TRI program.

With the exception of dioxin and dioxin-like compounds, EPA decided to
extend Form A eligibility to all TRI-listed PBT chemicals when there are
no annual releases of the PBT chemical and the facility’s total annual
amount of the chemical recycled, combusted for energy recovery, and/or
treated for destruction does not exceed 500 pounds.  By finalizing these
criteria, there will be no loss of detailed release information for PBT
chemicals.  As explained in the proposed rule, because of the high
toxicity of some dioxin and dioxin-like compounds and the wide variation
in toxicity among forms of dioxin, in a prior action, EPA proposed
adding toxic equivalency (TEQ) reporting for the dioxin and dioxin-like
compounds category (70 FR 10919, March 7, 2005).  EPA proposed TEQ
reporting in response to requests from TRI reporters that EPA create a
mechanism for facilities to report TEQ data to provide important context
for the dioxin and dioxin-like compounds release data.  In addition,
EPA believes that the public will benefit from the additional context
and comparability of data provided by TEQ reporting.  Accordingly, the
Agency has decided to wait until the dioxin TEQ rulemaking is finalized
and until the Agency has appropriate data before considering whether
this class of PBT chemicals should be considered for Form A eligibility.


 

EPA also emphasizes in response to these commenters that Form A provides
important information.  Under this rule, for non-PBTs each Form A
continues to serve as a range report, informing the public that total
releases is in the range of zero to 2,000 pounds and that total waste
management (which includes releases) is in the range of zero to 5,000
pounds.  For all PBT chemical forms expected to qualify for Form A under
this rule, data users will know that the facility had zero releases to
the environment of the PBT chemical and between zero and 500 pounds of
other waste management.  TRI data users are currently able to access
Form A facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

J. Proposed rule is inconsistent with the Agency’s responsibilities
under EPCRA and PPA

Summary of Comments (by Abt):

29 unique comments representing 773 commenters expressed general
opposition to the proposed rule because it is inconsistent with EPA’s
responsibilities under EPCRA and PPA.  Most commenters stated that EPCRA
guarantees the public a right-to-know about toxic releases in their
communities, and that this rule directly contradicts that right.  The
Oklahoma Department of Environmental Quality stated that it opposes this
rule because valuable and substantial information concerning the release
and disposal of the most toxic chemicals reported under TRI would be
lost.  It would circumvent the intent of the statute to provide
information to Oklahoma citizens if the only available information was
that these chemicals are in use or produced in the state, but no
information on the releases, transfer, or re-use of these chemicals was
provided to citizens.  

Another commenter wrote that more analysis with less information is an
oxymoron.  The task entrusted to the TRI was to gather the information
and make it readily available to the community.  This is the purpose of
EPCRA.  Reducing the frequency of information and the amount of
reporting units is a betrayal of the charter of the TRI.  Analysis
should be left to other portions of the EPA and interested (unbiased)
community-based scientists and individuals.  Another commenter wrote
that EPA’s proposal seems to be in direct conflict with the mission of
the EPA and the 2003-2008 Strategic Plan. 

The Delaware Department of Natural Resources and Environmental Control
(DNREC) wrote that the proposed rule states, "The Agency anticipates
this will have minimal impact on the national reports TRI generates
annually because it is a low quantity of waste and will have a
negligible impact on national totals." (70 Fed. Reg. 57841). Concerning
non-PBT chemicals, it states the proposal "still allows the TRI program
to report on a substantial majority of the releases." (70 Fed. Reg.
57842).  The Delaware DNREC disagrees with the implied focus of TRI
represented by these statements.  On a national level, capturing the
largest percentage of reportable amounts is a worthy goal, but this must
be balanced with providing information useful at the community level,
which is a primary focus of EPCRA.  While a TRI report from a facility
with small annual reporting amounts may not be significant on a national
basis, it can be extremely important to the citizens living next to the
facility.  

The American Public Health Association and the Children’s
Environmental Health Network similarly wrote that, in describing the
impact of these proposals, the EPA focuses on the impact on national
"totals," ignoring the fact that the benefits of TRI are also, if not
primarily, small-scale and local.  EPA argues that this higher threshold
would impact just 0.34% of total releases and 0.11% of all TRI total
production-related waste. These amounts may sound "negligible," but the
amounts involved are, respectively, 14 million pounds of releases and 25
million pounds of total production-related waste.  These are not
negligible amounts.

The Waterkeeper Alliance stated that Congress recognized the public’s
right-to-know when it created TRI, and it is not EPA's role to undercut
Congress' intention for the sake of so-called burden reductions on
industry.  Although Congress enacted EPCRA with some built-in
flexibility to address changing conditions, EPA is attempting to take
undue advantage of this provision to weaken the statute.  Under EPCRA
section 313, Congress set the initial parameters of TRI, and gave EPA
authority to modify TRI in various ways, including changing the toxic
chemicals subject to reporting, the facilities required to report, and
the threshold quantities that trigger reporting.  By EPA's own account,
"by providing this authority, Congress recognized that the TRI program
would need to evolve to meet the needs of a better informed public and
to refine existing information." 64 Fed. Reg. 690.  It is disingenuous
for EPA to rely on these allowances to create a less-informed public
under the guise of environmental protection, especially when the Agency
acknowledges that the primary purpose of EPCRA is to provide information
to the public. Therefore, EPA cannot be justified in its proposal of a
rule that contravenes that very articulated intent.

Environmental Defense wrote that Form A provides so little data that it
can hardly be considered a reporting form and does not meet the
statutory requirements for information required on a TRI reporting form.
 Unlike other shortened forms (notably the tax reporting form 1040EZ),
the Form A lacks the basic numerical information needed to understand
toxic releases.  As it is, Form A is meaningless to residents who want
to know if local toxic releases could affect their health or the
environment.  

Several State Attorneys General (of NY, CA, CT, IL, IA, MD, MA, NH, NJ,
NM, VT, WI) wrote that in addition to being contrary to the public
interest and sound policy, the proposed changes would violate EPCRA, the
Pollution Prevention Act (PPA) and the Administrative Procedure Act
(APA).  

Pursuant to EPCRA section 313(f)(2), EPA may establish revised reporting
thresholds for classes of chemicals or categories of facilities.  The
revised thresholds, however, "shall obtain reporting on a substantial
majority of total releases of the chemical," that is, for each TRI
chemical or closely-related family of chemicals.  Thus, analysis based
on whether a category of facilities in the aggregate meets the
"substantial majority" standard, or whether a class of chemicals in the
aggregate meets that standard, is contrary to the plain language of the
statute.  EPA would not be "ensuring" that reporting would continue to
meet the "substantial majority" standard should the proposed rule be
promulgated as final.  Moreover, since the proposed change reduces the
amount of information, the benefits of which vastly outweigh the
burdens, it is arbitrary and capricious.

Response:

EPA disagrees with commenters that the proposed rule expanding Form A
eligibility is inconsistent with the provisions authorizing changes to
TRI reporting thresholds.  EPA also disagrees with the comment that the
rule to expand Form A eligibility directly conflicts with the mission of
the EPA and the 2003-2008 Strategic Plan.  For more information on the
mission of the Agency and the goals outlined in the Strategic Plan visit
the Agency’s website at:   HYPERLINK "http://www.epa.gov"  www.epa.gov
.  The 2003 – 2008 Strategic Plan can be accessed at:   HYPERLINK
"http://www.epa.gov/cfo/plan/plan.htm" 
http://www.epa.gov/cfo/plan/plan.htm .  However, because of concerns
raised by commenters over the loss of information on releases of non-PBT
chemicals, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals being
considered for Form A.  

This final rule is consistent with the authority given to EPA by EPCRA
section 313(f)(2).  As discussed in the preamble to the proposed rule,
EPCRA allows EPA to adjust the reporting thresholds so long as the
adjusted thresholds "obtain reporting on a substantial majority of total
releases of the chemical at all facilities subject to the requirements
of this section."  Under this rule, Form A eligibility is being extended
to facilities reporting on non-PBT chemicals with Annual Reportable
Amounts (ARAs) not exceeding 5,000 pounds and release amounts
contributing no more than 2,000 pounds toward the 5,000-pound ARA. 
Under this rule, each Form A continues to serve as a range report,
informing the public that total releases is in the range of zero to
2,000 pounds and therefore Form A continues to obtain reporting on a
substantial majority of total releases of every TRI-listed chemical at
all facilities as required be EPCRA § 313(f)(2).  42 U.S.C. §
11023(f)(2).  

With regard to PBT chemicals, because the rule requires zero releases
for PBT chemical Form A eligibility, there will be no loss of detailed
PBT release information.  For all PBT chemical forms expected to qualify
for Form A under this rule, data users will know that the facility had
zero releases to the environment of the PBT chemical and between zero
and 500 pounds of other waste management.  Thus, the Form A serves as a
range report, which informs the public that other waste management of
the PBT chemical is 500 pounds or less.  

Furthermore, Form A provides important information.  TRI data users are
currently able to access Form A facility information via Envirofacts and
TRI Explorer (http://www.epa.gov/triexplorer) in the same manner that
Form R facility information is accessed.  Form A informs data users that
a facility is a potential source of releases and other waste management
activities.  Using EZ Query in Envirofacts
(http://www.epa.gov/envirofacts), data users are able to access
individual chemical Form As along with the TRI Facility Identification
Numbers (TRIFIDs) and the names of facilities submitting Form As.  

K. Other

Summary of Comments (by Abt):

22 unique comments representing 23 commenters expressed general
opposition to the proposed rule for other reasons not specified above.  

Several commenters wrote the proposal seems to ignore the risks
potentially posed by smaller facilities, which may pose greater risks to
surrounding communities because their daily environmental activities are
not regulated, or because they do not have full-time professional health
and safety personnel.  They need the most oversight and assistance from
public agencies to assure their compliance with environmental
regulations, and there is reason to believe that reporting requirements
at least makes the reporters more aware of the issue.  One commenter
wrote that it is often not the amount of a particular material that
poses risk, but the proximity to receptors.  Another commenter wrote
that some ‘smaller facilities’ are actually subsidiaries of large
parent corporations.  

The NY Department of Environmental Conservation, Northeast Waste
Management Officials' Association (NEWMOA), and Northeast States for
Coordinated Air Use wrote that the proposal presents particular problems
for states, such as Connecticut, Maine, Massachusetts, New Hampshire,
New Jersey, New York, and Vermont that have a significant number of
relatively small companies, many of which would provide less information
under TRI than they did in the past.  This type of change would also
create added complications and confusion for many facilities in states
like Maine, Massachusetts, and New Jersey that would likely continue to
collect toxics use and other data from these facilities under state
requirements.

One commenter wrote that if facilities were responsible, they would want
to know how much of these pollutants if was producing every year, and
certainly wouldn't want to hide such information from interested
neighbors.  Several other commenters wrote that current TRI regulations
encourage dialogue between facilities and communties.  The proposed
changes would reduce the ability of facilities to prove that they are
good neighbors, and may sow distrust between them and their surrounding
communities, ultimately leading to increased opposition to local
industry as a result of the increased uncertainty. 

Similarly, NHPIRG and USPIRG wrote that industry has been supportive of
TRI.  Tom Ward, a representative of Monsanto Corporation, was quoted in
Iowa recognizing that "the law is having an incredible effect on
industries to reduce emissions, and that's good. There's not a chief
executive officer around who wants to be the biggest polluter in Iowa." 
Many companies now include an environmental report on their websites, as
they recognize the positive image a good environmental record brings
them.  Boeing Company includes TRI data on its website, reporting how
overall releases have been declining.  Boeing then makes a pledge to
“invest and innovate in pollution prevention programs” and lead the
progress of all industry in the reduction of pollution.

Another commenter wrote that it wasn't until 1998, when the mining
industry was first required to report emissions under TRI, that it
became clear that metal mining is by far the greatest source of toxic
releases in the United States.  The most recent data shows the metal
mining industry reports releases of approximately one billion pounds of
toxic materials.  It is essential for communities affected by pollution
from mine sites and processing facilities to be able to monitor what the
mining industry is releasing into their environment, given the adverse
impacts many of these materials have on the health of humans and
ecosystems.

Another commenter wrote that the burden reduction is not worth the
increased uncertainty about exposure levels to the general population. 
Any relaxation of TRI reporting should be on a case-by-case basis and
only when an acceptable safety margin has been clearly demonstrated for
the chemical in question.

Another commenter wrote that competitiveness in foreign markets is not a
good reason for this proposal.  The EU has more stringent industrial
requirements and competes, and even China is taking initial steps to
address environmental problems.  Another commenter wrote that compliance
with environmental regulations may put our manufacturers at a
competitive disadvantage to businesses in developing countries - the
government should work hard for trade talks with the objective of
protecting workers and citizens in all parts of the globe. 

Another commenter wrote that the changes are intended to benefit
corporations, rather than protect citizens.  The poisoning of the public
water will only speed the privatization of all water supplies, which is
criminal. 

Several commenters, including Cathy Cloutier of the Delaware House of
Representatives, wrote that while burden reduction is laudable, the TRI
program is exactly the kind of efficient regulation that should be
emphasized and supported instead of command-and- control.  This type of
regulatory requirement helps foster more efficient environmental
management systems that are key to environmental sustainability and
global competitiveness.

Several commenters wrote that other options could be tried to figure out
how to improve reporting forms, not only to reduce the reporting burden
but also to include helpful hints that lead to toxic reduction
practices. However, these experiments and evaluations should precede,
not follow, any changes to the reporting requirements.  Another
commenter wrote that it is a mistake to reduce the items to report, and
that reporting could be based on the company's waste stream.

Another commenter wrote this initiative is not promoted by industry,
which understands the need for responsible stewardship of our
environment, the need for a level playing field, and the benefit of
comprehensive inventory of emissions, and which has not found the TRI
program unnecessarily burdensome.  The weakening of the TRI program is
being promulgated by the Administration as an ideological gesture, which
is most irresponsible, short-sighted and harmful to the citizens of our
country and world.

Nancy Johnson and five other members of the House of Representatives
wrote that, in the wake of growing concern with global climate change
and increased numbers of natural disasters over the past decade,
allowing increased amounts of toxins to be released into our atmosphere
seems unwise and reduced reporting to every two years compromises our
ability to respond to emergent problems.

Response:

EPA reminds those commenters concerned that this rule will detract from
good business practices that Form A is voluntary.  A facility qualifying
for Form A as a result of this rule can decide to continue filing Form R
reports if the facility believes doing so is in its best interests
(e.g., to make efficient use of materials, to maintain good standing in
the community, to be competitive in the international arena).  To date,
many Form Rs that EPA receives on an annual basis appear to qualify for
Form A at the 500-pound threshold for non-PBTs.  In fact, EPA factored
this consideration into its decision-making for this rule. 
Specifically, the Agency has observed that only slightly over half of
the forms (54%) potentially eligible for Form A use take advantage of
that option.  The Agency believes there are a number of potential
reasons for this utilization rate, including the desire to showcase
pollution prevention efforts on Form R and the desire to demonstrate
good environmental stewardship.  Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization is likely to be
significantly higher at a 5,000-pound ARA with a 2,000-pound release
limit for non-PBTs or at a 500-pound ARA with a zero release requirement
for PBTs than it has been to date at the 500-pound ARA threshold for
non-PBTs.

As far as preserving the public’s right-to-know, because the proposed
rule as well as the final rule requires zero releases for PBT chemical
Form A eligibility, there will be no loss of detailed PBT release
information.  For all 2,360 PBT chemical forms expected to qualify for
Form A under this rule, data users will know that the facility had zero
releases to the environment of the PBT chemical and between zero and 500
pounds of other waste management.  Thus, the Form A serves as a range
report, which informs the public that other waste management of the PBT
chemical is 500 pounds or less.  

With regard to the non-PBT proposal, EPA has carefully considered the
concerns raised about the impact the proposal could have on the utility
of the data.  Commenters opposed to the proposed 5,000-pound ARA contend
that it is at the local level that a 5,000-pound Form A range of waste
management information, and in particular, release information, will
adversely impact the ability to perform trend analyses, monitor the
performance of individual facilities, and more generally, meet the
intended purpose of the data collection to inform the public,
government, and other data users about releases of toxic chemicals to
the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  Under this rule, each Form A continues to serve
as a range report, informing the public that total releases is in the
range of zero to 2,000 pounds and therefore, Form A continues to obtain
reporting on a substantial majority of total releases of every
TRI-listed chemical at all facilities as required be EPCRA § 313(f)(2).
 42 U.S.C. § 11023(f)(2).  By placing a 2,000-pound limit on the amount
of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden relief while at
the same time providing valuable information to the public consistent
with the goals and statutory purposes of the TRI program.

EPA does not believe increasing Form A eligibility will lead to more
water discharges as one commenter contends.  As discussed above, TRI is
an informational program.  

Sensitive to commenters’ concerns about the proposed rule’s
complexity, EPA has decided to finalize only one set of Form A
eligibility criteria for all TRI-listed non-PBTs and only one set of
Form A eligibility criteria for all TRI-listed PBTs (except dioxin and
dioxin-like compounds for the reasons expressed in the proposed rule). 
By applying only one set of Form A eligibility criteria to all
TRI-listed non-PBT chemicals EPA is keeping Form A eligibility less
complex than an approach that varies across non-PBT chemicals. 
Similarly, by applying only one set of Form A eligibility criteria to
all TRI-listed PBT chemicals (except dioxin and dioxin-like compounds)
EPA is keeping Form A eligibility less complex than an approach that
varies across PBT chemicals.  

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

In response to commenter’s concern that some “smaller facilities”
are actually subsidiaries of large parent corporations, TRI reporting is
facility-specific.  TRI reporting is based on whether a facility meets
the reporting requirements and not on the size of a facility’s parent
company.  

In response to commenter’s concern about the mining sector, a comment
from the National Mining Association (NMA) states that this rule to
expand Form A eligibility offers little or no TRI burden relief for the
mining industry (Docket entry: TRI-2005-0073-2541).

In response to comments that EPA pursue options other than reporting
changes to improve reporting forms, EPA has already provided numerous
compliance assistance resources and other measures to improve reporting.
 For those TRI facilities that do not expect to be able to take
advantage of this rule’s expanded Form A eligibility (e.g., mining
facilities) as well as for those smaller facilities that will be
eligible for expanded Form A eligibility under this rule, EPA encourages
all facilities to take advantage of the compliance assistance resources
and other measures the Agency offers to reduce the burden of TRI
reporting.  Throughout the history of the TRI Program, the Agency has
implemented measures to reduce the TRI reporting burden on the regulated
community while still ensuring the provision of valuable information to
the public that fulfills the purposes of the TRI program.  Through a
range of compliance assistance activities, such as the Toxic Chemical
Release Inventory Reporting Forms and Instructions (which is updated
every year), industry training workshops, chemical-specific and
industry-specific guidance documents, and the TRI Information Center (a
call hotline), the Agency has shown a commitment to enhancing the
quality and consistency of reporting and assisting those facilities that
must comply with EPCRA section 313.  In addition, EPA has made
considerable progress in reducing burden through technology-based
processes.  One example of a technology-based process is electronic
reporting using the Toxics Release Inventory - Made Easy (TRI-ME)
software, an interactive, user-friendly software tool that guides
facilities through TRI reporting.  Other technology-based examples
include the use of EPA’s Central Data Exchange (CDX) for form
submission, and the use of data submitted to the Agency through other
EPA programs to pre-populate TRI data fields.  These measures have
reduced the time, cost, and complexity of existing environmental
reporting requirements, while enhancing reporting effectiveness and
efficiency and continuing to provide useful information to the public
that fulfills the purposes of the TRI program.  

 

2. Comments expressing overall opposition unless specific changes are
made to the proposal

Summary of Comments (by Abt):

Two commenters expressed overall opposition unless specific changes are
made to the proposal.  One commenter suggested changing
chemical-specific reporting thresholds when there is no real potential
threat to human health and the environment outside the boundaries of the
facility.  The Puget Sound Action Team suggested a list of additional
chemicals that should be subject to the PBT reporting requirements.

Response:

Despite varying toxicity among the more than 600 non-PBT chemicals
subject to TRI reporting, EPA has decided to allow Form A to be
considered for all TRI-listed non-PBT chemicals.  By applying one set of
Form A eligibility criteria to all TRI-listed non-PBT chemicals EPA is
keeping Form A eligibility less complex than an approach that varies
across non-PBT chemicals.  Further, EPA disagrees with the commenter
suggesting that EPA only change chemical-specific reporting thresholds
when there is no real potential threat to human health and the
environment outside the boundaries of the facility.  This suggested
approach would be nearly impossible to implement because such knowledge
would not be available until after implementation when information has
been submitted to determine whether there were releases that cause a
potential threat.  

EPA recognizes, however, that the TRI-listed non-PBT chemicals include a
wide range of chemicals with varying toxicities and varying chemical
characteristics.  This recognition as well as all of the concerns raised
about the loss of detailed TRI waste management information under the
proposed rule, and in particular, the impacts from the loss of detailed
Form R information on releases at the local level, have led EPA to
modify the proposed 5,000-pound ARA by placing a 2,000-pound limit on
releases of non-PBT chemicals being considered for Form A.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.  EPA believes that this
approach to expanded Form A eligibility for non-PBT chemicals
appropriately balances meaningful burden relief from one Form A
eligibility threshold for all non-PBT chemicals against the requirement
to provide the public and other data users with information that is
consistent with the goals and statutory purposes of the TRI program.

With the exception of dioxin and dioxin-like compounds, EPA decided to
extend Form A eligibility to all TRI-listed PBT chemicals when there are
no annual releases of the PBT chemical and the facility’s total annual
amount of the chemical recycled, combusted for energy recovery, and/or
treated for destruction does not exceed 500 pounds.  As explained in the
proposed rule, because of the high toxicity of some dioxin and
dioxin-like compounds and the wide variation in toxicity among forms of
dioxin, in a prior action, EPA proposed adding toxic equivalency (TEQ)
reporting for the dioxin and dioxin-like compounds category (70 FR
10919, March 7, 2005).  EPA proposed TEQ reporting in response to
requests from TRI reporters that EPA create a mechanism for facilities
to report TEQ data to provide important context for the dioxin and
dioxin-like compounds release data.  In addition, EPA believes that the
public will benefit from the additional context and comparability of
data provided by TEQ reporting.  Accordingly, the Agency has decided to
wait until the dioxin TEQ rulemaking is finalized and until the Agency
has appropriate data before considering whether this class of PBT
chemicals should be considered for Form A eligibility. 

The comment from the Puget Sound Action Team to apply the PBT TRI
reporting requirements to additional chemicals is outside the scope of
the rulemaking to expand Form A eligibility and EPA has not responded to
this comment as part of this rulemaking.

3. Comments misunderstanding the rule

Summary of Comments (by Abt):

Six commenters expressed misunderstanding about the rule.  One commenter
expressed a belief that the Toxics Release Inventory program would
disappear.  Another commenter expressed concern with labeling of
products.  Two commenters said that EPA should not lessen restrictions
on allowed releases, or increase levels of pollutant releases.  Two
other commenters opposed expanding pollution.

Response:

Because these comments are outside the scope of the rulemaking to expand
Form A eligibility EPA has not responded to them as part of this
rulemaking.

					

NEUTRAL COMMENTS 

Summary of Comments (by Abt):

Nine commenters made neutral comments about the rule that neither
expressed support nor opposition.  The majority of neutral comments
stressed the importance of striking an appropriate balance between
providing the public with information about chemicals and reducing
economic burden to industry, based on the best information available.
Two commenters were academics that had conducted in-depth research on
the effects of the TRI program on corporate and community
decision-making and the general public’s level of knowledge of TRI
information, respectively. (See Documents 900.1 and 2158.1 for details.)
 Two commenters, including the State Attorneys General of NY, CA, CT,
IL, IA, MD, MA, NH, NJ, NM, VT, WI stated that changes to reporting
thresholds should be debated on a chemical-by-chemical basis.  National
Mining Association (NMA) stated that proposals offer little or no TRI
burden reduction for the mining industry, but detailed a number of
different approaches to burden reduction that could be of considerable
value. General Electric (GE) stated that while burden reduction is a
worthy goal, proposals to expand applicability for Form A would not
provide significant burden reduction.

Response:

EPA agrees with commenters that it is important to strike an appropriate
balance between providing the public with information about chemicals
and reducing burden to industry.

As far as providing the public with important information, because the
proposed rule requires zero releases for PBT chemical Form A
eligibility, there will be no loss of detailed Form R release
information.  For all 2,360 PBT chemical forms expected to qualify for
Form A under this rule, data users will know that the facility had zero
releases to the environment of the PBT chemical and between zero and 500
pounds of other waste management.  Thus, the Form A serves as a range
report, which informs the public that other waste management of the PBT
chemical is 500 pounds or less.  

With regard to the non-PBT proposal, EPA has carefully considered the
concerns raised about the impact the proposal could have on the utility
of the data.  Commenters opposed to the proposed 5,000-pound ARA contend
that it is at the local level that a 5,000-pound Form A range of waste
management information, and in particular, release information, will
adversely impact the ability to perform trend analyses, monitor the
performance of individual facilities, and more generally, meet the
intended purpose of the data collection to inform the public,
government, and other data users about releases of toxic chemicals to
the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  Under this rule, each Form A continues to serve
as a range report, informing the public that total releases is in the
range of zero to 2,000 pounds and therefore, Form A continues to obtain
reporting on a substantial majority of total releases of every
TRI-listed chemical at all facilities as required be EPCRA § 313(f)(2).
 42 U.S.C. § 11023(f)(2).  By placing a 2,000-pound limit on the amount
of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

In response to concerns that changes to reporting thresholds should be
debated on a chemical-by-chemical basis, EPA considered concerns about
specific chemicals.  As discussed in the preamble to the final rule,
commenters voiced concerns about the potential non-reporting of TRI
release information on the Hazardous Air Pollutants (HAPs) regulated
under the Clean Air Act (CAA).  Other commenters asked EPA to exclude
carcinogens from Form A eligibility at the proposed 5,000-pound ARA. 
The Ohio Environmental Protection Agency suggests that EPA consider
establishing a lower Form A eligibility threshold for chemicals which
can cause serious health effects, such as carcinogens.  Ohio EPA notes
in its comment that the TRI list of chemicals already identifies
carcinogens through a lower de minimis exemption eligibility level. 
Another commenter asks EPA to assess Form A eligibility based on
consideration of human developmental effects, and especially the
neurodevelopmental effects, of toxic chemicals.  

The Agency factored into its decision-making for the final rule the
impact that the proposed rule could have on HAP chemical release
information.  Agency analysis following the proposal showed that HAP
chemical reports would comprise a significant percentage of the
approximately 12,000 Form Rs estimated to be newly eligible for Form A
under the proposed rule.  For example, Agency analysis estimated that 32
TRI-listed HAP chemicals identified by the Agency as “priority urban
air toxics” could account for as many as 2,600 of the approximately
12,000 Form Rs at issue under the proposal.  While these 2,600 forms
account for only 0.4% of total releases reported to TRI for these 32 HAP
chemicals, these 2,600 forms account for almost 20% of all Form Rs
submitted for these HAPs.  With regard to other specific chemicals
raised by commenters, EPA recognizes the varying toxicity among the
hundreds of non-PBT chemicals subject to TRI reporting.  EPA has
factored into its thinking on this rule the wide range of TRI chemicals
with varying toxicities and varying chemical characteristics.  After
thoughtful consideration, EPA has decided to apply today’s expanded
Form A eligibility to all TRI-listed non-PBT chemicals.  Applying the
same eligibility criteria to all non-PBTs reduces the complexity of the
TRI program and reduces reporters’ burden of learning and applying
more complex new criteria.  However, well aware of the varying toxicity
across TRI-listed non-PBT chemicals, as well as the local data use
impacts from the non-reporting of detailed Form R release information,
EPA has decided to modify the proposed 5,000-pound ARA by placing a
2,000-pound limit on releases of non-PBT chemicals being considered for
Form A.  EPA believes that this approach to expanded Form A eligibility
for non-PBT chemicals appropriately balances meaningful burden relief
through the use of one Form A eligibility threshold for all non-PBT
chemicals against the continued provision of valuable information to the
public and other data users consistent with the goals and statutory
purposes of the TRI program. 

EPA also believes that this rule provides meaningful burden relief. 
Specifically, EPA estimates that 6,670 facilities will be able to take
advantage of the Form A burden savings as a result of this rule.  For
all facilities taking advantage of Form A for a non-PBT chemical, the
Agency estimates the burden savings to be 9.1 hours for each Form A
completed in lieu of a Form R.  For all facilities taking advantage of
Form A for a PBT chemical, the Agency estimates the burden savings to be
15.5 hours for each Form A completed in lieu of a Form R.  For a
detailed breakdown of the savings per Form R, readers should refer to
the economic analysis accompanying the rule.  While this burden savings
may not represent a significant savings for all facilities eligible for
Form A under the proposal, EPA agrees with commenters that the proposed
rule may provide meaningful burden relief for some reporters such as
small facilities.  EPA also acknowledges that facilities with releases
and other waste management amounts well below the threshold for Form A
may be spared the burden of detailed calculations to determine
eligibility for Form A.  

In weighing all of the above considerations, EPA believes that the final
rule strikes a better balance than the proposed rule insofar as
providing meaningful burden relief while at the same time providing
valuable information to the public consistent with the goals and
statutory purposes of the TRI program.  

					

COMMENTS RELATED TO GENERAL POLICY ISSUES

A. Current Form R is not a significant burden

Summary of Comments (by Abt):

Fifteen commenters stated that the current requirements to fill out the
Form R rather than the Form A are not a significant burden for industry.
 Three commenters work for or had worked for facilities that submit
Forms R and stated that they did not find the current requirements to be
burdensome and that reporting helped facilities keep track of plant
operations.  Several commenters stated that EPA's electronic reporting
system has already decreased the time and effort needed to submit the
information to EPA. Others stated the burden was insignificant compared
to the value of the TRI data to a wide range of stakeholders, and the
positive controls and pollution reductions that have resulted from TRI. 
One commenter stated that arguments that the current regulations are
burdensome on industry are belied by the remarkable strength of our
economy over the last 20 years. Don't Waste Arizona, Inc (DWAZ) cited a
randomized survey of 60 companies that found the average time to
complete the TRI forms was 18 hours per year.  Many companies have
stated that TRI reporting is not a burden, and some companies even plan
to continue publicly reporting toxic chemicals.  DWAZ believes that
these toxins pose a threat to public safety that far outweighs the
burden on companies to report the release and disposal of dangerous
chemicals.  American Public Health Association (APHA) and Children’s
Environmental Health Network stated that the fact that many of the
facilities already eligible to use the shorter form do not use it
counters arguments that the existing reporting requirements are somehow
unreasonably burdensome.

Response:

EPA agrees with commenters that Form R does not represent a significant
burden for some facilities.  EPA also agrees with commenters that some
facilities will continue to report on Form R despite eligibility for
Form A under this rule.  In fact, the Agency did consider as part of its
decision-making process existing Form A utilization.  Specifically, the
Agency observed that only slightly over half of the forms (54%)
potentially eligible for Form A use take advantage of that option.  The
Agency believes there are a number of potential reasons for this
utilization rate, including the desire to showcase pollution prevention
efforts on Form R and the desire to demonstrate good environmental
stewardship.  Regardless of the factors that prompt facilities to use
Form R when they may be eligible for Form A, the Agency does not believe
the rate of Form A utilization is likely to be significantly higher at
the final rule’s 5,000-pound ARA with a 2,000-pound release limit for
non-PBTs or at a 500-pound ARA with a zero release requirement for PBTs
than it has been to date at the 500-pound ARA threshold for non-PBTs.

EPA disagrees with these commenters, however, that Form A does not
provide burden relief.  Specifically, EPA estimates that 6,670
facilities will be able to take advantage of the Form A burden savings
as a result of this final rule.  For all facilities taking advantage of
Form A for a non-PBT chemical, the Agency estimates the burden savings
to be 9.1 hours for each Form A completed in lieu of a Form R.  For all
facilities taking advantage of Form A for a PBT chemical, the Agency
estimates the burden savings to be 15.5 hours for each Form A completed
in lieu of a Form R.  For a detailed breakdown of the savings per Form
R, readers should refer to the economic analysis accompanying the rule. 
While this burden savings may not represent a significant savings for
all facilities eligible for Form A under the proposal, EPA believes that
the proposed rule may provide meaningful burden relief for some
reporters such as small facilities.  EPA also acknowledges that
facilities with releases and other waste management amounts well below
the threshold for Form A may be spared the burden of detailed
calculations to determine eligibility for Form A.  

Furthermore, for both PBTs and non-PBTs Form A provides important
information.  For all PBT chemical forms expected to qualify for Form A
under this rule, data users will know that the facility had zero
releases to the environment of the PBT chemical and between zero and 500
pounds of other waste management.  Thus, the Form A serves as a range
report, which informs the public that other waste management of the PBT
chemical is 500 pounds or less.  Under today’s final rule, each Form A
for a non-PBT chemical continues to serve as a range report, informing
the public that total releases is in the range of zero to 2,000 pounds
and therefore, Form A continues to obtain reporting on a substantial
majority of total releases of every TRI-listed chemical at all
facilities as required be EPCRA § 313(f)(2).  42 U.S.C. § 11023(f)(2).
 Moreover, TRI data users are currently able to access Form A facility
information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

B. Creates unfair advantage for certain facilities

Summary of Comments (by Abt):

Four commenters stated that the proposal would create an unfair
advantage for certain facilities.  Three commenters felt that the
proposal would penalize companies that are good neighbors in communities
and control their environmental impact if socially irresponsible
polluting companies can escape notice of the public.  One commenter
stated that the sources that would continue to report would bear the
brunt of public pressure, regulatory action, and legislative attention
aimed at reducing toxic emissions, even if smaller sources no longer
reporting in combination contribute as much to ambient pollution as
large major sources.

Response:

EPA disagrees with commenters that the proposed rule would create an
unfair advantage for facilities serving as good neighbors at the expense
of those who escape public notice by taking advantage of Form A.  First,
Form A is a voluntary option for those facilities that meet this
rule’s Form A eligibility criteria and EPA, as well as many
commenters, believe that a significant number of eligible facilities
will choose not to exercise this option.  In fact, the Agency has
observed to date that only slightly over half of the forms (54%)
potentially eligible for Form A use take advantage of that option.  The
Agency believes there are a number of potential reasons for this
utilization rate, including the desire to showcase pollution prevention
efforts on Form R and the desire to demonstrate good environmental
stewardship.  Regardless of the factors that prompt facilities to use
Form R when they may be eligible for Form A, the Agency does not believe
the rate of Form A utilization is likely to be significantly higher at
the final rule’s 5,000-pound ARA with a 2,000-pound release limit for
non-PBTs or at a 500-pound ARA with a zero release requirement for PBTs
than it has been to date at the 500-pound ARA threshold for non-PBTs.  

Second, Form A provides important information about facilities,
preventing them from escaping public notice.  For all PBT chemical forms
expected to qualify for Form A under this rule, data users will know
that the facility had zero releases to the environment of the PBT
chemical and between zero and 500 pounds of other waste management. 
Thus, the Form A serves as a range report, which informs the public that
other waste management of the PBT chemical is 500 pounds or less.  Under
today’s final rule, each Form A for a non-PBT chemical continues to
serve as a range report, informing the public that total releases is in
the range of zero to 2,000 pounds and therefore, Form A continues to
obtain reporting on a substantial majority of total releases of every
TRI-listed chemical at all facilities as required be EPCRA § 313(f)(2).
 42 U.S.C. § 11023(f)(2).  Moreover, TRI data users are currently able
to access Form A facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

2. Other

Summary of Comments (by Abt):

Three commenters made other comments about general policy issues
relating to the proposed rule.  One stated that a public hearing on the
benefits and risks of any action on the regulation should be held. 
Another stated that EPA has done a poor job administering the TRI
program, considering delays of over a year to release data, abandonment
of facility-specific analyses, failure to aggressively challenge
litigation that would weaken the program, and a reduced Public Data
Release (PDR).  National Mining Association (NMA) questioned EPA's
commitment to regulatory reform of TRI given some staff members’
efforts to gather comments adverse to the burden reduction proposals.

Response:

First, EPA notes that these comments are irrelevant to this rulemaking.

Second, over the past several years EPA has sought and carefully
considered public input related to this rulemaking.  EPA conducted a TRI
Stakeholder Dialogue between November 2003 and February 2004.  A summary
of this dialogue is available at   HYPERLINK
"http://www.epa.gov/tri/programs/stakeholders/outreach.htm" 
http://www.epa.gov/tri/programs/stakeholders/outreach.htm .  The
dialogue process focused on identifying improvements to the TRI
reporting process and exploring a number of burden reduction options
associated with TRI reporting.  As a result of the Stakeholder Dialogue
and subsequent comments from stakeholders, the Agency identified several
burden reducing options.  These options fall into three broad
categories, one of which is the sole focus of this rule -- expanding
Form A eligibility.

Third, while EPA disagrees with NMA’s comment about the Agency not
being committed to regulatory reform, the program also tries to reduce
burden efficiently by providing other means of burden relief rather than
only providing relief through the rulemaking process, which can take
much longer.  Specifically, throughout the history of the TRI Program,
the Agency has implemented measures to reduce the TRI reporting burden
on the regulated community while still ensuring the provision of
valuable information to the public that fulfills the purposes of the TRI
program.  Through a range of compliance assistance activities, such as
the Toxic Chemical Release Inventory Reporting Forms and Instructions
(which is updated every year), industry training workshops,
chemical-specific and industry-specific guidance documents, and the TRI
Information Center (a call hotline), the Agency has shown a commitment
to enhancing the quality and consistency of reporting and assisting
those facilities that must comply with EPCRA section 313.  In addition,
EPA has made considerable progress in reducing burden through
technology-based processes.  One example of a technology-based process
is electronic reporting using the Toxics Release Inventory - Made Easy
(TRI-ME) software, an interactive, user-friendly software tool that
guides facilities through TRI reporting.  Other technology-based
examples include the use of EPA’s Central Data Exchange (CDX) for form
submission, and the use of data submitted to the Agency through other
EPA programs to pre-populate TRI data fields.  These measures have
reduced the time, cost, and complexity of existing environmental
reporting requirements, while enhancing reporting effectiveness and
efficiency and continuing to provide useful information to the public
that fulfills the purposes of the TRI program.  

Finally, with regard to expediting the data release, EPA created the
Electronic Facility Data Release (e-FDR) to get the data out to local
communities sooner.  In the past TRI data were received,
quality-checked, analyzed and released in the annual TRI Public Data
Release (PDR).  Stakeholders requested that EPA share TRI data sooner
and in the basic format received, without waiting for analysis.  The
e-FDR was developed in response to these stakeholder requests.  The
e-FDR is a facility-level, form-by-form release of TRI data, as
submitted by facilities. The e-FDR does not include the aggregation of
TRI data or national trend analyses.  In addition, increased Internet
reporting has allowed EPA to process and make this facility-level data
available earlier.  The Public Data Release (PDR) includes national
analysis and trends as well as tools to support independent analyses. 
Unlike the e-FDR, the data in the PDR undergoes comprehensive data
checks and therefore takes more time to prepare.  For more information
about either the e-FDR or the PDR visit the TRI website at:   HYPERLINK
"http://www.epa.gov/tri"  www.epa.gov/tri  

FORM A ELIGIBILITY – PBT CHEMICALS

A. In support of proposed option 

Topic Comment Summary (by Abt):

Five commenters expressed general support for EPA’s proposed option to
extend Form A reporting for PBTs to facilities with no releases and an
ARA of less than 500 pounds. One commenter suggested expanding the list
of chemicals to which the alternate threshold applies to include the
following other, non-PBT chemicals of special concern: 

Chemicals subject to TRI reporting that are also PBT chemicals defined
by Washington State: 

·cadmium 

·decondecabromodiphenyl oxide (deca-BDE) 

·hexachlorobutadiene 

·naphthalene 

·phenanthrene 

Other chemicals subject to TRI reporting that are chemicals of concern
for Puget Sound: ·arsenic 

·chromium (and chromium compounds) 

·copper (and copper compounds) 

·creosote 

·tributyl tin (as fluoride and methacrylate)

Response: 

In response to commenters who support the EPA’s proposal to allow use
of the Form A for PBT chemicals the Agency has chosen finalize the
proposed option for PBT chemicals.  Under this final rule, a facility
can use the Form A Certification Statement for a PBT chemical if they
manufacture, process, or otherwise use under 1 million pounds of the
chemical, have zero disposal or other releases reportable in Section 8.1
and 8.8, and have 500 pounds or less of total other waste management in
reportable Sections 8.2 through 8.8 of the Form R.  

One commenter suggested that EPA add several chemicals to its list of
chemicals of special concern at 40 CFR 372.28.  Lowering reporting
thresholds for additional chemicals is beyond the scope of this
rulemaking, but at this time the Agency does not intend to lower
thresholds for any chemicals currently reportable to TRI.

i. Acceptable data loss 

Topic Comment Summary (by Abt):

Nine commenters supported EPA’s proposed option to extend Form A
reporting for PBTs because no actual release data would be lost. Some
commenters noted that the proposal will not compromise public health or
reduce the ability to plan for emergency responses, and that most people
are interested solely in releases to the environment. The Small Business
Administration stated that a substantial majority of the releases of PBT
chemicals would be subject to reporting, as the statute requires, since
100 percent of all PBT releases are reported on the full Form R. Another
commenter stated that the Form R data which would be lost, primarily
involving recycling data, make up less than 0.1 percent of all recycling
data for all PBTs, and that current day recycling activities pose little
risk to local communities.

Response: 

EPA agrees that this final rule will not result in a substantial loss of
TRI information.  One commenter correctly asserts that all releases of
PBTs will continue to be captured on Form R reporting because facilities
can only use Form A if they have zero releases of the PBT chemical.  As
stated in the preamble to the proposed rule (70 FR 57838) the Agency
believes that this rule will have a minimal impact on communities and
TRI data users.  

ii. Burden reduction is helpful 

Topic Comment Summary (by Abt):

Eight commenters supported EPA’s proposed option to extend Form A
reporting for PBTs because of the helpful burden reduction for
facilities that have zero releases. Commenters stated that the burden of
reporting is substantial and that burden relief is needed, especially
for reporters that have zero releases and are managing their chemicals
in an efficient manner. Specific types of reporters deserving burden
reduction were described, mostly facilities using lead and lead
compounds. According to one commenter, a small sampling of small glass
and ceramic decorators indicated that, on average, tracking usage and
completing Form R took 163 hours, with annual lead usage of 286 pounds
and no lead releases. Another commenter described the wire and wire
products industry, which uses steel (which contains lead) and recycles
all of the scrap, and stated that manufacturers should not have to
report simply because lead is a residual in their predominant raw
material. Some commenters discussed the high percentage of Form Rs for
PBTs reporting no releases. One commenter stated that in the electronics
and electrical manufacturing sector, 31% of the Form Rs for lead and
lead compounds reported no release to the environment. Another commenter
stated that the very existence of a significant number of TRI reports
for zero releases indicates that the TRI program is inefficient.
American Petroleum Institute stated that facilities with zero releases
are adequately managing TRI chemicals through recycling or other
pollution prevention activities so that there are no releases, and
therefore risk, to the environment and the public.

Response: 

EPA agrees with commenters that expanding eligibility of Form A to
include PBT chemicals will provide burden relief for reporting
facilities.  The Agency understands that the reporting burden can be
significant which is why it proposed to allow the use of Form A for PBT
chemicals with no releases and small quantities of other waste
management activities.  The comment that manufacturers should not have
to report for lead that is a residual in their raw materials is beyond
the scope of this rulemaking.

iii. Provides incentive for pollution reduction 

Topic Comment Summary (by Abt):

Six commenters suggested that EPA’s proposal would encourage pollution
prevention, as facilities would work to eliminate PBT releases to
qualify for Form A. 

Response: 

The Agency agrees that it proposal encourages pollution prevention.  By
limiting this approach to PBT chemicals with zero releases and 500
pounds or less of other waste management, EPA is encouraging facilities
to eliminate releases of PBTs and reduce other waste management to below
the 500 pound limit.   

B. Opposed to the proposed option  

Topic Comment Summary (by Abt):

Fourteen unique submissions representing 307 commenters expressed
general opposition to the proposed option for PBT chemicals. Many
commenters suggested that PBTs were too persistent and dangerous to
human and environmental health for the reporting requirements to be
relaxed. 

Response: 

The Agency agrees that PBT chemicals can pose a danger to human health
and the environment, however, EPA believes that the proposed approach
for allowing Form A for PBT chemicals will not result in negative
environmental impacts.  Rather, the Agency believes this approach will
result in decreased releases of these chemicals because it encourages
facilities to reduce their releases to zero.  For chemicals such as lead
and mercury where the only possible waste management activities are
release and recycling, this approach will encourage recycling and source
reduction, both desirable waste management techniques.  If the recycling
activity results in a release then the facility would not meet the
criteria of this option and therefore would not be allowed to use Form
A.

i. Form A eligibility for PBTs is inconsistent with EPCRA and previous
rule lowering PBT thresholds 

Topic Comment Summary (by Abt):

Eighteen unique submissions representing 34 commenters expressed general
opposition to the proposed option for PBT chemicals because it is
inconsistent with EPCRA and the lowering of PBT thresholds. Many
commenters wrote that the proposed option is inconsistent with the
intent and direction of the recently expanded PBT information which
disallowed Form A for PBT reporting and implemented reduced reporting
thresholds for PBT chemicals. As noted in the rule that lowered
thresholds for PBT chemicals (64 Fed. Reg. 58732, (Oct. 29, 1999)), EPA
cited concerns at that time over releases and other waste management of
these chemicals at low levels and said that, based on the information
available to the Agency at that time, EPA believed that the level of
information from Form A was insufficient to do meaningful analysis on
PBT chemicals. The Delaware Department of Natural Resources and
Environmental Control wrote that this approach was correct then and is
correct more than ever now, so in order to retain the ability to do
meaningful analysis on PBT data, the current reporting requirements
should be retained or made stronger, not weaker. The New York State
Department of Environmental Conservation also noted that allowing the
use of Form A for some PBTs is a departure from the current practice of
excluding PBT reporters from Form A use. The commenter states that the
public perceives these compounds to be some of the most highly toxic
compounds, and any departure from full disclosure may be perceived as an
act of willful intent to hide their waste management practices. The
EPCRA rules, known to the public as "Community Right-to-Know Laws," were
specifically designed to help the public understand the potential
impacts of chemicals on their communities and to make informed
decisions. The Waterkeeper Alliance also stated that allowing the use of
short Form A for PBT chemicals is an unjustified departure from EPA's
past and current practice. Waterkeeper believes the rule reflects an
ongoing Agency pattern and practice of an abandonment of EPA's mission.
The commenter states that EPA’s recognition of such, however, does not
dissolve the Agency of responsibility nor justify its sudden reversal.
Nor is its newly-found position entitled to deference. While judicial
deference may be appropriate for reasonable agency interpretations that
do not thwart Congressional intent, "an agency interpretation of a
relevant provision which conflicts with the agency's earlier
interpretation is 'entitled to considerably less deference' than a
consistently held agency view." Brock v. International Organizations of
Masters, 842 F.2d 70, 72 (4th Cir. 1988); Kutler v. Carlin, 139 F.3d
237, 247 (D.C. Cir. 1998). See also United Housing Found., Inc. v.
Forman, 421 U.S. 837, 858 n.25 (1975) (a contradictory agency position
is afforded little deference). Courts have held that such conflicting
interpretations are "arbitrary" and "plainly erroneous." The Minnesota
Pollution Control Agency wrote that the focus on burden reductions for
zero-release chemicals reflects a misunderstanding of one of the core
intents of the current TRI. The Form R was expanded in 1991 to include
data on other methods of toxic chemical waste management specifically to
recognize that preventing pollution involves a great deal more than just
reducing or eliminating the release of a toxic chemical. The Columbia
River Inter-Tribal Fish Commission wrote that expanding the eligibility
of Form A to PBTs, chemical contaminants with known risks to humans and
aquatic ecosystems, is also inappropriate. In addition, this approach
appears inconsistent with the U.S. EPA's own Multimedia Strategy for
Priority Persistent, Bioaccumulative, and Toxic (PBT) Pollutants (PBT
Strategy) to reduce risk from exposure to these chemicals. The commenter
believes that the limited record keeping relief anticipated by this rule
change does not justify the sacrifice of public disclosure and polluter
accountability for such a hazardous chemical group. Several State
Attorneys General also discussed EPA’s 1999 rule. In particular, EPA
considered and rejected the proposal at issue here that facilities with
zero releases be allowed to use Form A to report 500 pounds or less of
other production-related waste because the additional waste management
information helps communities understand what PBT chemicals are
transported through their communities as well as the reported waste
management activity at the receiving facility. The State Attorneys
General also noted that in 1999, EPA considered the argument that "range
reporting" should be allowed for PBT chemicals, as would essentially be
the case if EPA adopted the proposed rule. The commenter claimed that
EPA determined that "use of ranges could misrepresent data accuracy for
PBT chemicals because the low or the high end range numbers may not
really be that close to the estimated value, even taking into account
its inherent error (i.e, errors in measurements and developing
estimates)." According to the commenter, EPA believed this uncertainty
would severely limit the applicability of release information where the
majority of releases, particularly for PBT chemicals, are expected to be
within the amounts eligible for range reporting. The commenter further
states that EPA noted that under the original, statutory thresholds, EPA
only received 6 reports for PCBs, a subcategory of PBTs, and concluded
that "[u]nder no interpretation [of section 313] can six reports be
characterized as obtaining a comprehensive view of toxic chemical
exposure." In the proposed rule, EPA has turned 180 degrees and now
seeks to allow Form A to be used for nondioxin PBT chemicals, but does
so without any adequate explanation of its reversal. EPA "believes" that
there would be minimal data loss from moving to Form A, but does not
explain this change of position, since in 1999 it determined that use of
Form A would produce "virtually useless" data. EPA nowhere explains why
reporting about other production-waste activities that it found to be
"very important to communities" can now be eliminated through use of
Form A. EPA admits that under the proposed rule, Form A would serve as a
"range report" for nondioxin PBT chemicals," but again does not explain
its apparent change of position as to the adequacy of range reports for
PBT chemicals. Moreover, EPA never provides a chemical-by-chemical
analysis of the effect that Form A reporting would have on the
availability of information regarding nondioxin PBT chemicals, so it is
impossible for EPA to know whether the proposed rule would reduce
reporting to even less than the six reports that EPA previously
concluded were inadequate. OMB Watch quoted from EPA’s fact sheet on
PBTs regarding the serious adverse health effects of PBTs and the
vulnerability of children and fetuses. According to the fact sheet, "the
facts are clear that we have much work ahead of us to reduce the risks
of these PBT chemicals." And, EPA publicly committed to "…protecting
children and women of child-bearing years from exposure to PBTs, and
reducing the concentration of PBTs in our environment." EPA then took
steps in 2000 to begin to address the threats from PBTs. However, EPA's
proposal to permit facilities to report PBTs on Form A if that facility
has zero releases and production-related waste of less than 500 pounds
will make it even more difficult for EPA to fulfill its stated
commitments to protect people from exposure to PBTs. This is a step
backwards after the agency has just recently begun to obtain a clearer
understanding of the quantities and locations of these most dangerous
chemicals. The commenter states that EPA determined that "the general
information provided on the Form A, on the quantities of the chemical
that the facility manages as waste is insufficient for conducting
meaningful analyses on PBT chemicals. (64 FR 58734)." The commenter
believes that the Agency does not sufficiently explain why it is now
reversing its earlier decision that PBT chemicals require a low
reporting threshold. 

Response: 

EPA agrees that allowing the use of Form A for some PBTs is a departure
from the current practice of excluding PBT reporters from Form A use.
The Agency discussed its rationale for excluding all PBT chemicals from
the alternate threshold of 1 million pounds in the PBT Proposed Rule (64
FR 58716, January 5, 1999). In the PBT Final Rule the Agency stated:

EPA believes that use of the existing alternate threshold and reportable
quantity for Form A would be inconsistent with the intent of expanded
PBT chemical reporting. The general information provided on the Form A,
on the quantities of the chemical that the facility manages as waste is
insufficient for conducting meaningful analyses on PBT chemicals. ( 
HYPERLINK "http://www.epa.gov/EPA-WASTE/1999/October/Day-29/f28169.htm"
64 FR 58734 )

	

In the PBT Final Rule, however, the Agency also indicated that it would
revisit this issue after it had the opportunity to collect and analyze
several years worth of data at the lowered thresholds (  HYPERLINK
"http://www.epa.gov/EPA-WASTE/1999/October/Day-29/f28169.htm" 64 FR
58732 , October 29, 1999). In particular, the Agency indicated that it
might consider developing a new alternate threshold and reportable
quantity appropriate for PBT chemicals.  Consequently, the Agency
developed an ARA for PBT chemicals that is different from the ARA
discussed in the 1999 rule in that it does not allow any releases.  

With regard to comments about data loss, EPA does not believe that
allowing Form A for PBT chemicals will result in an unacceptable
reduction in the data reported to EPA.  As EPA stated in the proposed
rule, an estimated 2,700 PBT chemical forms would qualify for Form A
under the rule.  Of those 2,700 forms that reported zero releases,
approximately 2,100 reported zeros for other waste management quantities
and approximately 600 reported non-zero amounts in at least one of
Section 8.2 through 8.8 of the Form R.  For the 2,100 forms with zero
releases and zero other waste management, the actual reduction in data
obtained will be minimal.  For all 2,700 forms, data users will know
that the facility had zero releases to the environment of the PBT
chemical and between 0 and 500 pounds of other waste management.  Thus,
the Form A serves as a range report, which informs the public and other
data users that other waste management of the PBT chemical is 500 pounds
or less.  In addition, for certain PBTs, data users will be able to
assume the type of waste management that has occurred (e.g. in the case
of lead and mercury, the only possible waste management practice is
recycling).

ii. Unacceptable data loss

Topic Comment Summary (by Abt):

Seventeen unique comments representing 18,661 commenters expressed
general opposition to the proposed option for PBT chemicals because the
data loss associated with the reduced reporting requirements is
unacceptable.  

Many commenters said that the public needed to know about even small
amounts of PBTs being used or handled by facilities in their
communities, and that any reduction in data is particularly troubling
for PBTs, given the high priority that is placed on these chemicals
nationally and for most states.  The Social Investment Research Analysts
Network wrote that companies may face risks and potential liabilities
from the handling of even small amounts of many TRI-listed chemicals and
there is no compelling need to weaken the rights of investors to gain a
full picture of these risks.

Several State Attorneys General wrote that EPA states that it "believes
that communities and other users of TRI information are less concerned
about small volumes of on-site waste management when a facility is able
to achieve zero release of these chemicals."  But EPA does not provide
any evidence to support that purported belief. In fact, comments from
TRI data users already filed in the EPA docket are overwhelmingly to the
contrary, and thus EPA should change the statement. Because EPA's
current determination that it is appropriate to allow such facilities to
use Form A is based on that erroneous belief, that determination is
arbitrary and capricious.

Response: 

EPA disagrees with the commenters that allowing Form A for PBT chemicals
will result in an unacceptable loss of data.  As EPA stated in the
proposed rule, 2703 PBT chemical forms would qualify for Form A under
the rule.  Of those forms, 2085 reported zeros for other waste
management quantities and 618 reported non-zero amounts in at least one
of Section 8.2 through 8.8 of the Form R.  For the 2085 forms with zero
releases and other waste management that convert to Form A, EPA believes
the loss of data will be minimal.  With regard to the 618 forms that
have zero releases but some amount of the other waste management
quantities reported, data users will know that the facility had zero
releases to the environment of the PBT chemical and between 0 and 500
pounds of other waste management.  Thus, the Form A serves as a range
report which informs the public that other waste management of the
chemical is 500 pounds or less.  

The PBT chemical forms that report other waste management are primarily
forms for lead (including lead compounds), mercury (including mercury
compounds), and Polycyclic Aromatic Compounds (PACs) and
benzo(g,h,i)perylene.  For lead and mercury the only possible waste
management activity other that release is recycling.  Therefore, a Form
A for lead or mercury indicates that those chemicals had zero releases
and between 0 and 500 pounds of recycling.  The majority of  PACs and
benzo(g,h,i)perylene are either treated for destruction or burned for
energy recovery, hence, a Form A for these chemicals will provide a 500
pound range for those waste management activities.

Furthermore, TRI data users are currently able to access Form A facility
information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

 

Additionally, as discussed in the preamble to the proposed rule, for
today's action the Agency has considered existing Form A utilization. 
Specifically, the Agency observed that only slightly over half of the
forms (54%) potentially eligible for Form A take advantage of that
option.  The Agency believes there are a number of potential reasons for
this utilization rate, including the desire to showcase pollution
prevention efforts on Form R and the desire to demonstrate good
environmental stewardship.  Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization is likely to be
significantly higher for PBT chemicals.

a. Impacts community understanding of pollution/right-to-know 

Topic Comment Summary (by Abt):

Ten unique comments representing 5,978 commenters expressed general
opposition to the proposed option for PBT chemicals because the data
loss would negatively impact the public’s right to know about the
presence of PBTs in local communities.

James Jeffords and six other US Senators wrote that EPA's proposal to
reduce information collected on PBTs “released by a facility up to 500
pounds annually is disturbing...The rest of the world is making steady
progress towards better control of their PBT releases." The Senators are
unaware of any compelling reason that the United States should reduce
the public's information about the most dangerous class of industrial
chemicals.

The Michigan Department of Environmental Quality wrote that the TRI Form
R provides the only means of quantifiable data on releases and waste
streams for PBT chemicals. Allowing Form A use for PBT chemicals will
greatly reduce the public's access to even a minimum of information on
PBT chemical loading and transport through their communities. This is
contrary to the Right-to-Know intent of the law.

Several State Attorneys General wrote that allowing reduced reporting
for PBTs would reduce citizens' ability to understand, for example, how
much lead and mercury were present, and how much lead and mercury wastes
were generated, in their communities. For example, up to 3,700 pounds of
mercury waste generated at facilities across the nation could be
exempted from detailed reporting. Six years ago, EPA itself found that
reduced reporting similar to that proposed here was "virtually useless"
for communities interested in assessing risk from waste management of
PBT chemicals.

Response: 

EPA disagrees with the commenters that allowing Form A for PBT chemicals
will result in an unacceptable loss of data.  As EPA stated on the
proposed rule, 2703 PBT chemical forms would qualify for Form A under
the rule.  Of those forms, 2085 reported zeros for other waste
management quantities and 618 reported non-zero amounts in at least one
of Section 8.2 through 8.8 of the Form R.  For the 2085 forms with zero
releases and other waste management that convert to Form A, EPA believes
the loss of data will be minimal.  With regard to the 618 forms that
have zero releases but some amount of the other waste management
quantities reported, data users will know that the facility had zero
releases to the environment of the PBT chemical and between 0 and 500
pounds of other waste management.  Thus, the Form A serves as a range
report which informs the public that other waste management of the
chemical is 500 pounds or less.  

The PBT chemical forms that report other waste management are primarily
forms for lead (including lead compounds), mercury (including mercury
compounds), and Polycyclic Aromatic Compounds (PACs) and
benzo(g,h,i)perylene.  For lead and mercury the only possible waste
management activity other than release is recycling.  Therefore, a Form
A for lead or mercury indicates that those chemicals had zero releases
and between 0 and 500 pounds of recycling.  The majority of  PACs and
benzo(g,h,i)perylene are either treated for destruction or burned for
energy recovery, hence, a Form A for these chemicals will provide a 500
pound range for those waste management activities.

Furthermore, TRI data users are currently able to access Form A facility
information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

 

Additionally, as discussed in the preamble to the proposed rule, for
today's action the Agency has considered existing Form A utilization. 
Specifically, the Agency observed that only slightly over half of the
forms (54%) potentially eligible for Form A take advantage of that
option.  The Agency believes there are a number of potential reasons for
this utilization rate, including the desire to showcase pollution
prevention efforts on Form R and the desire to demonstrate good
environmental stewardship.  Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization is likely to be
significantly higher for PBT chemicals.

b. Loss of detailed data on pounds of total production related waste 

Topic Comment Summary (by Abt):

Fifteen unique comments representing sixteen commenters expressed
general opposition to the proposed option for PBT chemicals because the
loss of detailed data on pounds of total production related waste would
be too great. Several state agencies and environmental organizations
wrote about specific percentages of forms that would be lost under the
PBT proposal:

-for lead and lead compounds, 15% of Form Rs would be lost in South
Dakota.

-for lead, 16% of Form Rs would be lost in New Hampshire, 22% in Maine,
30% in Connecticut, and 20% in Minnesota.

-for polycyclic aromatic hydrocarbons (PAHs), 16% of Form Rs would be
lost in New Hampshire, 40% in South Dakota, 30% in California, 43% in
Maine, and 30% in Minnesota.

-for mercury and mercury compounds, 10% of Form Rs would be lost in New
Hampshire, and 23% in California.

-for mercury compounds, 34% of Form Rs would be lost in California.

-for benzo(g,h,I)perylene, 58% of Form Rs would be lost in California.

-for polycyclic aromatic hydrocarbons, 16% of Form Rs would be lost in
New Hampshire, 40% in South Dakota, 30% in California, 43% in Maine, and
30% in Minnesota.

-for all PBTs, 30% of Form Rs would be lost in Oklahoma and 33% in
Washington.

The Natural Resources Defense Council wrote that data on waste
management for PBT chemicals is especially important when the chemical
waste concerned is being handled as part of a remediation action.
Facilities performing environmental cleanups of PBT chemicals may not
necessarily have releases to report, but the waste management data
reported on Form R makes it easier for interested parties to track the
progress of cleanup efforts. If these facilities were to file Form A for
PBT chemicals as proposed by EPA, access to this waste management
information would become more difficult, since TRI is in many cases the
only data source readily available to the general public. 

Response: 

The Agency disagrees with commenters that allowing Form A for PBT
chemicals will have significant impacts on amounts of total
production-related waste available to data users.  EPA stated in the
preamble to the proposal that it anticipates this rule will have a
minimal impact on the national totals because it involves low quantities
of waste.  On an individual facility basis, data users will know that
the facility filing Form A for a PBT has between zero and 500 pounds
combined of recycling, energy recovery and treatment.  Also, the
zero-to-500-pound range report for waste management includes any waste
management that is conducted due to catastrophic events, remedial action
or other one-time events.  For example, if a facility conducts
remediation that results in waste quantities, in combination with
production-related waste management quantities, over 500 pounds, the
facility must report on Form R.  In addition, data users will know that
the facility has manufactured, processed or otherwise used the PBT
chemical above thresholds and below the one million pound threshold
limit for Form A.    

The Agency also disagrees with commenters that there will be a loss of
data with regard to reports for chemicals such as lead, mercury, PACs
and benzo(g,h,i)perylene.   The Agency believes that the Form A provides
information in the form of a range between zero and 500 pounds.  This
range represents recycling, energy recovery, treatment or a combination
of the three activities depending the chemical.  For lead and mercury
the only possible waste management activity other that release is
recycling.  Therefore, a Form A for lead or mercury indicates that those
chemicals had zero releases and between 0 and 500 pounds of recycling. 
The majority of PACs and benzo(g,h,i)perylene that will qualify for Form
A are either treated for destruction or burned for energy recovery,
hence, a Form A for these chemicals will provide a 500 pound range for
those waste

management activities.

c. Affects use of data in other regulatory programs/policy-setting 

Topic Comment Summary (by Abt):

Five unique submissions representing ten commenters expressed general
opposition to the proposed option for PBT chemicals because the loss of
detailed data would negatively affect the use of TRI data in policy
setting or in other regulatory programs. 

One commenter stated that the Oklahoma Department of Environmental
Quality (DEQ) would no longer be able to track potential hot spots
without the amount and location of PBTs released in Oklahoma. In
addition, the Pollution Prevention program at the Oklahoma DEQ program
would not be able to track reductions in PBT use and release in the
state. 

The National Environmental Trust wrote that PBTs should be of greater
concern for the Agency, and several program offices [within EPA] use the
TRI PBT data to track their own initiatives. It makes little sense for
EPA to deprive both its own and states' reduction programs this kind of
information. Similarly, the North American Hazardous Materials
Management Association wrote that the decreased reporting requirement
would undercut the ability of state and local programs working to
eliminate PBT pollution.

Response: 

EPA would like to point out that under this final rule, no releases of
PBT chemicals will go unreported because a facility can only use Form A
if it has zero releases of a PBT.  The rule will have no effect on the
ability of states like Oklahoma to target hot spots of PBT releases. 
With regard to the other waste management activities, EPA stated in the
proposed rule that 2703 PBT chemical forms would qualify for Form A
under the rule.  Of those forms, 2085 reported zeros for other waste
management quantities and 618 reported non-zero amounts in at least one
of Section 8.2 through 8.8 of the Form R.  For the 2085 forms with zero
releases and other waste management that will convert to Form A, EPA
believes the loss of data will be minimal.  With regard to the 618 forms
that have zero releases but some amount of the other waste management
quantities reported, data users will know that the facility had zero
releases to the environment of the PBT chemical and between 0 and 500
pounds of other waste management.  Thus, the Form A serves as a range
report which informs the public that other waste management of the
chemical is 500 pounds or less.  

d. Potential for sensitivity to even lower levels of exposure 

	

Topic Comment Summary (by Abt):

Eleven unique submissions representing 427 commenters expressed general
opposition to the proposed option for PBT chemicals because the proposal
seems to ignore the potential for senstivity to low levels of PBT
exposure. One commenter wrote that the rule changes will permit
facilities to hide, or not report, on the production of small amounts of
PBTs, even though these chemicals are highly dangerous in small
quantities in the environment and certain to accumulate within the human
body. Another commenter wrote that it is imperative that reporting on
bioaccumulative toxins continue as it exists today. Such chemicals can
pose a grave threat to those who experience continued exposure even at
low levels, and individuals have a right to know that they are being
released.

Response: 

EPA disagrees with commenters that allowing From A for PBT chemicals
will result in releases going unreported.  Only facilities that would
have reported zero for disposal or other releases on a Form R, in
addition to meeting other conditions, will be able to use the Form A for
a PBT chemical.  Facilities that would have reported a non-zero quantity
of disposal or other releases had they filed a Form A will not meet the
eligibility criteria for the Form A and thus will be required to file a
Form R instead.  

e. Impact on public health 

Topic Comment Summary (by Abt):

Seventeen unique comments representing eighteen commenters expressed
general opposition to the proposed option for PBT chemicals because of
the potential impact on public health. Many commenters wrote that the
proposal would lead to increased risk from PBTs; given the serious
health risks from these chemicals, it makes no sense to have any
reduction in reporting requirements. One commenter wrote that persistent
organic pollutants are an environmental "sleeper" issue-they are going
to cause more trouble in the future for human health, not less, and they
will not go away just because we create less paperwork about them. Many
commenters mentioned the increased risks to children and developing
fetuses. 

The Minnesota Pollution Control Agency wrote that this proposal makes
little sense at a time when researchers at two major laboratories have
found an average of 200 industrial chemicals and pollutants in umbilical
cord blood of 10 babies born in August and September of 2004 and when
the US Centers for Disease Control and Prevention recently issued its
Third National Report on Human Exposure to Environmental Chemicals (July
2005) which details exposure levels to 148 different environmental
chemicals, including many that are tracked through the TRI.

The Waterkeeper Alliance wrote that there is absolutely no justifiable
rationale to support EPA's proposal to reduce industry's obligation to
provide information about the most dangerous class of industrial
chemicals. EPA has acknowledged that PBTs are some of the most hazardous
industrial byproducts because they persist in the environment and build
up in the human body. They are highly toxic, long-lasting substances
that can build up in the food chain to levels that are harmful to human
and ecosystem health. PBTs are associated with a range of adverse human
health effects, including effects on the nervous system, reproductive
and developmental problems, cancer, and genetic impacts. PBTs have the
ability to travel long distances, to transfer rather easily among air,
water, and land, and to linger for generations in people and the
environment. The commenter claims that It is inexcusable for EPA to
finalize a rule that would in effect thwart the public's ability to
monitor PBT chemicals in the name of "reducing the burden" to facilities
responsible for emitting and reporting information on these dangerous
toxics.

Several State Attorneys General wrote that EPA has calculated that 98
percent of the forms that would qualify for Form A under the proposed
rule and which reported positive amounts of production-related waste
other than releases were for (1) lead and lead compounds, (2) polycyclic
aromatic compound ("PACs"), and (3) mercury and mercury compounds. The
commenter believes that given the well-documented and widespread health
impacts, both local and regional, of these chemicals, reduced reporting
cannot be justified.

Response: 

EPA disagrees with commenters that allowing From A for PBT chemicals
will have a negative impact on public health.  Only facilities that
would have reported zero for disposal or other releases on a Form R, in
addition to meeting other conditions, will be able to use the Form A for
a PBT chemical.  Therefore, this approach will not allow any releases to
the environment to go unreported on the Form R.  In addition, by
limiting the use of Form A to those PBT chemicals with zero releases,
EPA is providing incentive for facilities with small releases to reduce
them to zero.  

f. Data needed to support pollution reduction efforts 

Topic Comment Summary (by Abt):

Three commenters expressed general opposition to the proposed option for
PBT chemicals because of the potential negative impact on pollution
reduction efforts that are supported by TRI data. The Minnesota
Technical Assistance Program wrote that this proposal would reduce the
number of Form Rs submitted in Minnesota for PBT chemicals by
approximately 20% and eliminate TRI data for a number of facilities,
affecting the ability to flag these facilities for possible pollution
prevention assistance. 

Similarly, the National Pollution Prevention Roundtable wrote that many
state programs utilize TRI data to identify P2 opportunities. These
include small quantities (less than 500 pounds) of PBT chemicals. These
programs will no longer have access to this data if the reporters are
allowed to use Form A instead of Form R to report these PBTs.

Response: 

The Agency believes that this approach will benefit pollution prevention
efforts.  By allowing Form A for PBT chemicals with zero releases, EPA
is providing incentive for facilities to eliminate releases by moving
toward source reduction or more favorable types of waste management such
as recycling and treatment.  In addition, by limiting total waste
management to 500 pounds or less, this approach will provide incentive
to reduce the entire amount of waste generated at a facility.

g. No releases does not necessarily mean no risk 

Topic Comment Summary (by Abt):

Sixteen unique comments representing 25 commenters expressed general
opposition to the proposed option for PBT chemicals because of the
potential data loss, specifically mentioning the fact that even
facilities with no releases present a risk to their communities. The
North American Hazardous Materials Management Association stated that
Form R was expanded in 1991 to include data on other methods of toxic
chemical waste management specifically to recognize that preventing
pollution involves a great deal more than just reducing or eliminating
the release of a toxic chemical. The Minnesota Pollution Control Agency
stated that since approximately 75% of the reported quantities of PBTs
are sent offsite for treatment, energy recovery or recycling, they still
certainly pose a risk for accidental release in surrounding communities
even if there are no regular releases associated with the manufacturing
processes in which they are used or are coincidentally manufactured.
Several commenters also mentioned the risk from transporting PBTs and
also the risk to workers. OMB Watch wrote that the EPA proposal would
allow facilities to withhold details of PBT quantities from the agency
and the public, merely because they remained on-site or were captured
and shipped to another facility. However, it is incorrect to believe
that PBTs are safe just because they have not been released to the
environment by the facilities during normal operation. Storage and
disposal of PBTs still pose a significant health risk to workers and
nearby communities, a health risk that should be fully tracked by EPA.
There are many examples of workers being exposed to chemicals even when
there are no releases to the environment. EPA's proposal would leave
workers at manufacturing facilities around the country, as well as at
recycling or disposal facilities, less aware of the risks associated
with PBT chemicals located onsite.

The Socially Responsible Investment Coalition wrote that, due to their
inherent characteristics, even small releases of PBTs can cause
catastrophic environmental impacts. Scientists are routinely discovering
adverse health effects resulting from infinitesimally small exposures to
PBTs and other chemicals of concern. 

Several State Attorneys General wrote that among the reasons why
communities remain interested in TRI data even when there are no
releases is for emergency planning. Form R information concerning the
maximum amount of a chemical on site during the year, or the amount of
chemical waste that may be retained on site for recycling, energy
recovery or destruction, helps communities understand what amounts of
toxic chemicals could be released from local facilities in the event of
spills, accidents and natural disasters like Hurricane Katrina so that
they can prepare adequate response measures in advance, or react
knowledgeably afterward.

OMB Watch also wrote that the agency also fails to consider the
importance of accurately tracking these quantities of extremely
dangerous chemicals for emergency response. As mentioned previously, in
the wake of Hurricanes Katrina and Rita, the TRI was the primary tool
used by first responders to map potential exposure risks and identify
possible toxic hotspots. Firefighter and emergency medical personnel
also need the most accurate information on toxic chemicals located at a
facility. The commenter believes that EPA's proposal would result in
knowing less about quantities of PBTs stored at facilities around the
country as well as shipments from and to disposal or treatment
facilities.

Response: 

Several commenters oppose the rule because the use of Form A for a PBT
chemical could allow certain activities to go unreported on a Form R
such as accidental releases, storage and disposal, transportation of the
chemical and other activities that could pose a risk to workers and the
public.  EPA would like to remind commenters that facilities cannot have
any releases or disposal of a PBT chemicals and still use the Form A. 
For example, if a facility transfers a PBT chemical off-site for
disposal in a landfill, it cannot use Form A for that chemical because
it did not meet the zero release criterion for the use of Form A.  

Commenters expressed concern about the loss of data that can be used for
emergency planning purposes.  When a facility submits a Form A, data
users will still know, among other things, the location of the facility,
the chemical identity and that the chemical was either manufactured,
processed or otherwise used above the threshold quantity.  In response
to commenters’ concerns about being prepared for emergencies, EPA
points out that there are sections of EPCRA that specifically address
emergency planning and notification.  These sections of EPCRA provide
important information to responders and communities. 

With regard to comments about data loss, EPA does not believe that
allowing Form A for PBT chemicals will result in an unacceptable
reduction in the data reported to EPA.  As EPA stated in the proposed
rule, an estimated 2,700 PBT chemical forms would qualify for Form A
under the rule.  Of those 2,700 forms that reported zero releases,
approximately 2,100 reported zeros for other waste management quantities
and approximately 600 reported non-zero amounts in at least one of
Section 8.2 through 8.8 of the Form R.  For the 2,100 forms with zero
releases and zero other waste management, the actual reduction in data
obtained will be minimal.  For all 2,700 forms, data users will know
that the facility had zero releases to the environment of the PBT
chemical and between 0 and 500 pounds of other waste management.  Thus,
the Form A serves as a range report, which informs the public and other
data users that other waste management of the PBT chemical is 500 pounds
or less.  

EPA agrees with the State Attorneys General who state that a large
majority of PBT Form As would be submitted for lead, mercury, and PACs. 
The PBT chemical forms that report other waste management are primarily
forms for lead (including lead compounds), mercury (including mercury
compounds), and Polycyclic Aromatic Compounds (PACs) and
benzo(g,h,i)perylene.  For lead and mercury the only possible waste
management activity other than release is recycling.  Therefore, a Form
A for lead or mercury indicates that those chemicals had zero releases
and between 0 and 500 pounds of recycling.  The majority of  PACs and
benzo(g,h,i)perylene are either treated for destruction or burned for
energy recovery, hence, a Form A for these chemicals will provide a 500
pound range for those waste management activities.

iii. Lessens incentive for companies to improve environmental
performance 

Topic Comment Summary (by Abt):

Three commenters expressed general opposition to the proposed option for
PBT chemicals because it would reduce the incentives for companies to
improve their environmental performance. The New York State Department
of Environmental Conservation wrote that in Section III.C.2.c, in
discussing other potential impacts of Form A eligibility for PBT
chemicals, EPA states that the "Agency feels this reporting option will
provide an incentive to TRI facilities to eliminate releases and reduce
the need for other waste management..." The commenter asserts that EPA
provides no data or analyses to support this opinion and it is difficult
to imagine that facilities would find it more cost effective to
eliminate releases and/or change waste management practices than to
simply file Form R.

Several State Attorneys General wrote that EPA has not evaluated, but
should evaluate, the extent to which the proposed changes to the rule
will weaken incentives for companies to reduce releases and use of toxic
chemicals. In the past, TRI reporting requirements have induced
companies to reduce their releases and use of toxic chemicals by
billions of pounds, but the proposed rule would weaken that incentive by
allowing less reporting. Companies that previously kept their use of
non-dioxin PBT chemicals to less than the reporting threshold of 10 or
100 pounds to avoid detailed reporting could now begin to use up to
1,000,000 pounds without detailed reporting, so long as they met the 500
pound PRA threshold. EPA contends that the proposed changes to PBT
reporting provide incentives for facilities to lower their waste
management totals under the new threshold. But EPA provides no economic
analysis demonstrating any such incentive effect. The commenter further
provides that the proposed rule is likely to provide minimal burden
reduction, if any. As a result, it is likely that any incentive effect
arising out of that burden saving would in fact be de minimis. Moreover,
the history of TRI demonstrates that it is disclosure of toxic chemicals
amounts, not concealment, that serves as a powerful incentive to reduce
toxic chemical use and release. The proposed rule, by allowing
facilities to conceal the amount of waste PBT chemicals on site, would
thus weaken, not strengthen, the pollution-reduction incentive.
Companies that are currently reporting low amounts of other
production-related waste would be able to increase those amounts by
orders of magnitude - for example, from 10 pounds to 450 pounds -
without disclosing that increase. Accordingly, EPA's finding that the
proposed change would create pollution-reduction incentives lacks a
basis in reason or the record. 

Response: 

The Agency disagrees with commenters that the rule will not provide
incentive for companies to improve their environmental performance. 
Rather, EPA believes that this approach will provide incentive for
reporting facilities to reduce their quantities of waste in order to be
eligible for Form A.  By allowing Form A for PBT chemicals with zero
releases, EPA is providing incentive for facilities to eliminate
releases by moving toward source reduction or more favorable types of
waste management such as recycling and treatment.  In addition, by
limiting total waste management to 500 pounds or less, this approach
will provide incentive to reduce the entire amount of waste generated at
a facility.

The Agency would like to clarify the difference between the chemical
thresholds and the ARA.  The chemical thresholds are a trigger for
reporting.  For the PBT chemicals subject to this rule, the thresholds
are either 10 or 100 pounds.  A facility must submit a Form R or Form A
to EPA if it manufactures, processes, or otherwise uses the chemical
over the specified threshold and meets the other reporting criteria. 
The PBT ARA is used to determine whether a facility that exceeds the 10
or 100 pounds thresholds and otherwise subject to reporting will qualify
for the Form A alternate threshold of 1 million pounds.  A facility that
exceeds a threshold for a PBT chemical but is below the PBT ARA of 500
pounds of total waste management can apply the 1 million pound alternate
threshold to that PBT chemical.  If the chemical is manufactured,
processed or otherwise used below the alternate threshold then the
facility can use Form A, otherwise it must file a Form R.  The Form A
represents that the facility did not exceed the alternate threshold,
that the facility did not dispose of or release any of the PBT chemical
and that the waste management of that chemical was within a range of
zero to 500.

iv. Minimal burden reduction 

Topic Comment Summary (by Abt):

Five commenters expressed general opposition to the proposed option for
PBT chemicals because it provides minimal burden reduction, and does not
justify the loss in publicly-available data. The Natural Resources
Defense Council wrote that, in the case of facilities that neither
release nor have other waste management quantities of PBT chemicals, it
would still be beneficial for local communities to have access to such
information. EPA has acknowledged that "the burden of completing Form R
for such facilities is small" (70 Fed. Reg. 57839), which disproves any
need for burden reduction for these facilities. Even under current
methodologies the average cost savings per facility would be only
$1,035. The commenter believes that It is obvious from EPA's own
estimates that the burden reduction benefit of the proposed rule is
rather small and does not justify the expected loss of waste management
information.

Several State Attorneys General wrote that EPA notes that the bulk of
the forms eligible for revised reporting of nondioxin PBT chemicals
under the proposed rule - 2,085 forms out of 2,703, or approximately 77
percent -report zero quantities of releases and zero quantities of other
production-related waste. As a result, the burden relief from the
proposed rule for these reporting entities would be minimal, since, as
EPA admits, "the burden of completing Form R for such facilities is
small. The commenter further states that EPA also believes that many of
these facilities would continue to use Form R for the same reason. Since
EPA provides no convincing justification for its reversal in position,
and since by EPA's own admission most of the facilities in this category
would receive little benefit from the proposed change, EPA should
withdraw the proposed rule.

Response: 

EPA disagrees with commenters that the rule will result in minimal
burden reduction.  Facilities that use Form A for a PBT chemical will
save an estimated 15.5 hours of burden per Form A submitted instead of a
Form R.  From the standpoint of total burden savings, the Agency
estimates that the 2,360 facilities eligible for this option will save
approximately 36,500 hours of reporting burden.  One commenter suggests
that burden savings is minimal because the majority of facilities
eligible for this option have no waste management quantities to report
(i.e., zeros in Sections 8.1 through 8.8).  Facilities that report all
zero for their waste management quantities will still see burden savings
from this rule.  These burden savings would be realized because the
facility would no longer have to complete data elements such as the
Production Ratio in Section 8.9 or the maximum amount of the TRI
chemical on-site at any one time in Part II, Section 4 of the Form R.

v. Other 

Topic Comment Summary (by Abt):

Four commenters expressed general opposition to the proposed option for
PBT chemicals for reasons not specified above. One commenter wrote that
the proposal provides abundant opportunities for unreported releases and
the facilitation of poor industry management practices. The
Environmental Integrity Project wrote that the TRI data shows that air
emissions of PBT's have increased since 2000, more should be done to
reverse that trend. EPA has not seriously considered whether the
exemptions it proposes would give companies an incentive to hide, rather
than report, small but hazardous releases of PBT's to avoid the full
disclosure under Form R that would otherwise be required. Another
commenter wrote that EPA is sending a dangerous message to the public
that it cares more about aiding and abetting companies with
irresponsible and reckless practices than about public or environmental
health. The International Relations Center wrote that the proposal would
set a bad example, leading to under-reporting in Mexico.

Response: 

The Agency disagrees with commenters that the rule will not provide
incentive for companies to improve their waste management practices. 
Rather, EPA believes that this approach will provide incentive for
reporting facilities to reduce their quantities of waste in order to be
eligible for Form A.  By allowing Form A for PBT chemicals with zero
releases, EPA is providing incentive for facilities to eliminate
releases by moving toward source reduction or more favorable types of
waste management such as recycling and treatment.  In addition, by
limiting total waste management to 500 pounds or less, this approach
will provide incentive to reduce the entire amount of waste generated at
a facility.

One commenter suggests that facilities may hide small releases by using
Form A for a PBT chemical.  In regard to this comment the Agency would
like to emphasize that only facilities that would have reported zero for
disposal or other releases on a Form R, in addition to meeting other
conditions, will be able to use the Form A for a PBT chemical. 
Therefore, this approach will not allow any releases to the environment
to go unreported on the Form R. 

C. Comments on whether any of the chemicals potentially eligible for
this option are of sufficient level of concern so as to justify EPA
excluding them from eligibility from Form A 

Topic Comment Summary (by Abt):

Four commenters responded to the question of whether any of the PBT’s
potentially eligible for Form A reporting are of sufficient level of
concern so as to justify EPA excluding them from eligibility.  One
commenter, the Edison Electric Institute (EEI), said they do not believe
that any chemical (whether PBT or non-PBT) should be automatically
excluded from Form A reporting eligibility.  Three commenters (the State
Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM, VT, and WI;
American Public Health Association (APHA) and Children's Environmental
Health Network (CEHN); and Columbia River Inter-Tribal Fish Commission)
disagreed, commenting that PBTs should not be eligible for Form A
reporting.  APHA and CEHN indicated that any substance that is
persistent, bioaccumulative or toxic warrants sufficient concern to be
excluded from eligibility for the shorter reporting requirements, and
that if basic human developmental effects information, especially
neurodevelopmental information, of a chemical is not public, that
chemical warrants a sufficient level of concern to be excluded from
eligibility for lower reporting requirements. 

Response: 

As stated in the proposed rule, EPA is not including dioxin and
dioxin-like compounds in the final rule.  Because of the high toxicity
of some dioxin and dioxin-like compounds and the wide variation in
toxicity between forms of dioxin, EPA proposed to add toxic equivalency
(TEQ) reporting for dioxin and dioxin-like compounds in March, 2005 (70
FR 10919).  Until the Agency has the appropriate data collected in
conformance to the final TEQ rule it will wait to decide whether dioxin
and dioxin-like compounds should be eligible for Form A.  

With regard to the PBT chemicals that are eligible for Form A, the
Agency believes that it is appropriate to allow Form A for these
chemicals if they meet the PBT ARA.  EPA would like to reiterate that
only facilities that would have reported zero for disposal or other
releases on a Form R, in addition to having 500 pounds or less of total
other waste management, will be able to use the Form A for a PBT
chemical.  Facilities that do not meet these criteria will be required
to file a Form R instead.  Because of the strict criteria that must be
met in order to use Form A, the Agency believes it is appropriate to
allow the use of Form A for PBT chemicals. 

i. Approach to defining PBT Reportable Amount (PRA) 

Topic Comment Summary (by Abt):

Three commenters discussed the approach to defining PBT Reportable
Amount (PRA), specifically the inclusion of section 8.8 quantities. The
State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM, VT,
and WI noted that the facility's PRA will be the same whether the zero
value for nonproduction-related releases from section 8.8 are included
or not. The Department of Energy (DOE) and the National Petrochemical
and Refiners Association (NPRA) suggest that section 8.8 quantities
should not be included in the definition of PRA. DOE indicated that
according the proposal, the quantity from 8.8 is already required to be
zero, so that deleting section 8.8 would not change the quantity in the
PRA. Both DOE and NPRA wrote that removing section 8.8 from the PRA
would make the approach to defining PRA and ARA more consistent, since
the ARA for non-PBT chemicals does not currently include section 8.8.

Response: 

The Agency has decided to finalize the rule as proposed by including
Section 8.8 in the PBT ARA.  If Section 8.8 were not included in the PBT
ARA it would be possible for other waste management quantities exceeding
500 pounds to go unreported.  The Agency believes that local communities
may want to track large quantities and thus will include Section 8.8 in
the PBT ARA.

Two commenters suggested that EPA exclude Section 8.8 from the PBT ARA
to make it consistent with the ARA used to determine Form A eligibility
for non-PBT chemicals.  The Agency agrees that the PBT and non-PBT ARAs
should be consistent and therefore has decided to modify the ARA for
non-PBT chemicals to include Section 8.8.  EPA does not expect the
inclusion of Section 8.8 quantities in the Form A threshold
determination for PBT chemicals to add a significant amount of burden to
those facilities considering Form A.  First, less than 4% of all PBT
chemical Form Rs have a value greater than zero in section 8.8.  In
addition, because Section 8.8 is restricted to quantities involving
remedial actions, catastrophic events, or one-time events not associated
with production processes, EPA does not expect Section 8.8 quantities to
factor into any facility's Form A eligibility determinations on a
consistent, annual basis.

ii. Comments on PRA threshold 

Topic Comment Summary (by Abt):

Seven commenters expressed suggestions on the PBT ARA threshold, or on
the release threshold for PBT’s. The Small Business Administration
(SBA) noted that EPA did not analyze alternate ARA’s, and they
suggested an increase in the ARA from 500 lbs to 5,000 lbs. They
indicated that this revision can provide burden relief for another 477
Form Rs (making a total of 3180 eligible Form Rs) without compromising
community right-to-know. The Association Connecting Electronics
Industries (IPC), National Association of Manufacturers (NAM), and the
Graphic Arts Coalition also suggested that the PRA should be increased
to provide more burden reduction and promote pollution prevention by
rewarding facilities that minimize their waste through increased
recycling. They noted that analysis of SIC 36 reports for lead and lead
compounds for RY2003 indicated that under the proposed PRA, only 50% of
facilities reporting zero releases would be eligible to use Form A. If
the PRA were increased to 3,000 lbs, 89% of facilities with zero
releases would qualify for Form A burden relief, and that a 5,000 lb PRA
would provide relief to 92% of facilities with zero releases. SBA, IPC,
NAM, the Graphic Arts Coalition, and the National Federation of
Independent Business (NFIB) all noted an analysis of the 2002 PBT TRI
data performed by the SBA Office of Advocacy, showing that raising the
PRA threshold from 500 lbs to 5000 lbs would retain approximately 99.9%
of the waste data currently reported. Therefore raising the PRA is
within EPA's regulatory authority. 

Society of Glass and Ceramic Decorators (SGCD) and the National Council
for Air and Stream Improvement (NCASI) both made comments on the 0 lb
release threshold, and suggested an increase in this threshold. NCASI
wrote that the proposed zero release requirement for use of Form A will
essentially prohibit its use by facilities with fuel burning equipment
for most of the PBTs. They suggest that EPA set a non-zero value for PBT
releases for Form A eligibility, such as 10 lbs (the reporting threshold
amount for most PBTs) of total releases to the environment. SGCD noted
that the zero total release requirement restricts the burden reduction
benefit to 35% of SIC 32 filers while an expansion of this Form A
threshold to 10 pounds of both on- an off-site release would provide
burden reduction for another 18% of SIC 32 filers. SGCD wrote that 57
companies in SIC 32 reported one pound of off-site release, and zero
on-site releases, and that these companies should be able to use Form A
for their zero lbs of on-site releases. 

Response: 

EPA disagrees with commenters who state that the 500 PBT ARA should be
raised or that a small amount of releases should be allowed under this
approach.  The zero release limit was suggested by commenters in the
November 2003 Stakeholder Dialogue and other venues who pointed out that
there are a number of facilities that submit Form Rs that have zero
total disposal or other releases in Section 8.1 of Form R. Some of the
stakeholders expressed the opinion that the Agency should develop a
simplified form for these reports.  EPA notes that many reporters with
zero total disposal or other releases in Section 8.1 still report
positive quantities in sections 8.2 through 8.8. However, EPA believes
that communities and other users of TRI information are less concerned
about small volumes of on-site waste management when a facility is able
to achieve zero release of these chemicals. EPA has thus determined that
it is appropriate to allow Form A for such facilities, provided they
have zero disposal and other releases for a particular PBT chemical.

By setting the ARA to 500 pounds, EPA has balanced burden reduction with
the needs of data users who use TRI information for tracking trends in
recycling, treatment and energy recovery.  Further, the Agency believes
that this approach will comply with the goals of the PPA by providing
incentive to facilities without any releases to lower their other waste
management totals to 500 pounds or less so they can qualify for this
option.  

iii. Comments on specific PBT chemicals 

Topic Comment Summary (by Abt):

Four commenters discussed the eligibility for Form A reporting of
specific PBT chemicals. One environmental consultant commenter said they
agree that allowing Form A for facilities that primarily use lead (for
example in soldering) is a valuable burden reduction since the releases
of lead are typically minimal as are the quantities of lead in stores.
The Aluminum Association commented on dioxin, suggesting that EPA should
clarify the rule regarding dioxin compounds expeditiously. They noted
that in the proposal, EPA states that the proposed PBT reporting
provisions for the short form do not apply for dioxin and dioxin
compounds because the Agency is still addressing the rulemaking for TEQ
reporting for those substances. 

The US PIRG Education Fund commented on lead, indicating that lowering
the lead threshold in 2001 triggered more facilities to report their
lead releases, providing communities with more information, and that EPA
should learn from that experience and lower reporting thresholds, not
raise them. One submission from the State Attorney Generals of NY, CA,
CT, IL, IA, MD, MA, NH, NJ, NM, VT, WI commented on lead, PAC’s, and
mercury. They wrote that lead is a potent neurotoxin, and to help health
departments, doctors, medical researchers and citizens to minimize lead
exposures, these groups need to know where lead is used, where lead
releases are coming from and where other lead waste is generated. They
also noted that EPA has not explained why reporting thresholds of 10,000
or 25,000 pounds were too high in 2001, but a reporting threshold of
1,000,000 pounds is acceptable in 2006. EPA contends that the "most
common scenario" for lead reporters with zero releases but positive
amounts of other waste management quantities is that the reporters "send
lead waste offsite to a recycler," and EPA needs either to confirm that
all of these facilities do send their lead waste to off-site recyclers
or to add a discussion regarding what facilities do with their lead
waste if they do not send it to off-site recyclers. EPA also needs to
address the fact that even if all facilities do follow this practice
today, they may not do so in the future, undermining the support for the
proposed rule. The Attorneys General also wrote that while the national
figure of percent of pounds of lead recycling lost (0.0084%) is small,
this loss may be unevenly distributed, creating "blind spots" where
reporting on significant amounts of lead in a particular community would
disappear. Nor does the national figure indicate whether the rule would
create any "black holes" where all or nearly all reporting of lead waste
quantities in a particular community would disappear. The States are
concerned about each one of their communities, not just national
averages.

Regarding PAC’s, the Attorneys General stated that EPA notes that
"many" combustion units that may be used to burn PACs may be subject to
the Resource Conservation and Recovery Act or the Clean Air Act, but
does not claim that all are. Unless EPA either states unambiguously that
all of these combustion units are covered by these statutes or performs
an analysis showing that incineration at these units will not result in
the release of PACs or benzo(g,h,i)perylene, it should not promulgate
the proposed rule. Also, they suggested that EPA needs to perform
localized analyses to determine whether the proposed rule will create
any "blind spots" or "black holes" with regard to PACs. PACs include
polycyclic aromatic hydrocarbons, a category of substances that include
probable and possible carcinogens. The Attorneys General stated that
their comments on mercury and mercury compounds are the same as for lead
and lead compounds. 

Response: 

As stated in the proposed rule, EPA is not including dioxin and
dioxin-like compounds in the final rule.  Because of the high toxicity
of some dioxin and dioxin-like compounds and the wide variation in
toxicity between forms of dioxin, EPA proposed to add toxic equivalency
(TEQ) reporting for dioxin and dioxin-like compounds n March, 2005 (70
FR 10919).  Until the Agency has the appropriate data collected in
conformance to the final TEQ rule it will wait to decide whether dioxin
and dioxin-like compounds should be eligible for Form A.

Two commenters stated that EPA should lower thresholds further for PBT
chemicals, not raise them to 1,000,000 pounds.  EPA would like to
emphasize that it will only be raising the threshold for the subset of
PBT chemicals that have zero releases and up to 500 pounds of other
waste management.  Facilities can submit a Form A for those chemicals
unless the manufacture, process or otherwise use of the chemical exceeds
1,000,000 pound in which case a Form R must be completed.  

One commenter opposed the rule stating that the public must know where
lead is being used and where lead waste is being generated and released.
 In response to this comment the Agency would like to point out that
only facilities with zero for disposal or other releases, in addition to
meeting other conditions, will be able to use the Form A for a PBT
chemical.  Therefore, the public will know that the facility submitting
the Form A has no releases of the toxic chemical.  Additionally, the
public will know that the PBT chemical is being manufacture, processed
or otherwise used above reporting thresholds (i.e. 10 or 100 pounds) and
at or below 1,000,000 pounds.  Further, the Form A will also indicate
that the other waste management activities for the chemical are between
0 and 500 pounds.  

One commenter requested that EPA confirm that lead reporters with zero
releases but positive quantities of other waste management are sending
their waste off-site for recycling.  For lead and mercury the only
possible waste management activity other than release is recycling. 
Therefore, a Form A for lead or mercury indicates that those chemicals
had zero releases and between 0 and 500 pounds of recycling either
on-site or off-site.  

Another commenter stated that EPA should not promulgate the rule if it
can not show that all combustion units used to burn PACs are regulated
under the Resource Conservation and Recovery Act or the Clean Air Act. 
EPA would like to point out that combusting PACs in a combustion unit
that does not meet strict standards of efficiency (e.g., 99.99%
efficiency) will have some releases of PACs.  If the facility has
releases it will not be allowed to use Form A for PACs.

E. Comments misunderstanding the burden reduction option 

Topic Comment Summary (by Abt):

Six unique comments representing ten commenters expressed
misunderstandings about the burden reduction option. One public
commenter expressed the sentiment that reporting should continue to be
required on small releases of PBTs. Another public commenter suggested
that EPA should not raise the triggering reporting threshold of PBT
chemicals from 500 pounds to 5,000 pounds. The Public Interest Research
Group in Michigan noted that TRI data was necessary to understand dioxin
releases into the environment. 

The National Environmental Trust (and two others) wrote that significant
amounts of non-production transfers or on-site waste management could
escape reporting, even though releases in Section 6 [rather than Section
8.1] were zero.

Response: 

The Agency would like to clarify that the Form A can be used for a PBT
chemical only if there are zero releases of that chemical and 500 pounds
or less of other waste management.  One commenter presents a scenario
where a facility has disposal quantities reportable in Section 6 of the
Form R.  In this case, the facility would not qualify for the Form A. 
Under the eligibility requirements of the final rule, facilities must
have zero releases reportable in Sections 5, 6 and 8 of the Form R in
order to use the Form A for a PBT chemical. With regard to the
commenters concerns about dioxin, EPA would like to point out that the
rule does not apply to dioxin and dioxin-like compounds.   

 

FORM A ELIGIBILITY - NON-PBT CHEMICALS  

A. In support of proposed option  

Summary of Comments (by Abt):

Three commenters expressed general support for expanding Form A
eligibility for non-PBT chemicals.  

Response:

EPA agrees with commenters expressing support for expanded Form A
eligibility for non-PBT chemicals that Form A provides burden relief. 
However, in response to concerns over the loss of detailed Form R waste
management information and in particular, the loss of local level
information on quantities released, EPA has decided to modify the
proposed 5,000-pound ARA by placing a 2,000-pound limit on releases of
non-PBT chemicals being considered for Form A.  In other words, based on
this modification to the proposal, in order for a facility to use the
Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.   

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of additional release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden reduction while at the same time providing valuable information
to the public consistent with the goals and statutory purposes of the
TRI program.    

i. Acceptable data loss

Summary of Comments (by Abt):

Thirteen commenters expressed support for expanding Form A eligibility
for non-PBT chemicals because the data loss associated with the proposal
is acceptable, with less than 1% of total releases nationwide eligible
for Form A reporting.  The Society of the Plastics Industry, Inc (SPI)
stated that much more current information on individual facilities is
available to the public through other regulatory databases disseminated
through EPA's "Envirofacts" data query system and information from Form
A can be supplemented with information from other regulatory programs. 
The U.S. Small Business Administration stated that the justifications
for the original institution of Form A in 1994 are directly applicable
today and justify the current proposal.  SBA also notes that they have
not heard of any TRI analyses being impaired by the current use of Form
A, as analyses naturally focus on the biggest releases.  The National
Association of Manufacturers noted that the proposal would meet the
EPA's stated goals to reduce burdens associated with TRI reporting while
providing valuable information to the public consistent with the goals
and statutory purposes of the TRI program.

Response:

While the detailed Form R information for the approximately 14 million
pounds of releases estimated by EPA to be eligible for Form A under the
proposal represents information on less than 1% of total TRI releases
nationwide, at the local level the impact is much more pronounced.  As
discussed in the preamble to the proposed rule, under the proposed
5,000-pound Form A threshold 26 TRI chemicals could move to all Form A
reporting and 655 ZIP codes with at least one TRI facility
(approximately 7% of all ZIP codes with a TRI facility) could move to
all Form A reporting.  Commenters have expressed concern about the move
to less detailed TRI information at the local level.  While some
information may be available from other sources, data users cannot look
to other readily accessible sources to replace all of the information
provided on Form R. 

Comments from States and local government, environmental and
community-based organizations, university faculty and other researchers,
investors, and concerned citizens have provided estimates of the
information that may move to Form A, and in particular, the
non-reporting of Form R release details at the local level.  Comments
have included estimates of the number of release pounds and/or Form Rs
for all TRI listed non-PBT chemicals and specific non-PBT chemicals that
may no longer be available because of Form A eligibility under the
proposed rule.  While commenters recognize that the potential loss of
the more detailed Form R release information under the proposal
represents a small percentage of TRI releases nationally, it is at the
local level that a 5,000-pound Form A range of release and other waste
management information would adversely impact the ability to perform
trend analyses, monitor the performance of individual facilities, and
more generally, meet the intended purpose of the data collection to
inform the public, government, and other data users about releases of
toxic chemicals to the environment.

Accordingly, in response to concerns over the loss of detailed Form R
waste management information and in particular, the loss of local level
information on specific quantities released by media, EPA has decided to
modify the proposed 5,000-pound “Annual Reportable Amount” (ARA) by
placing a 2,000-pound limit on releases of non-PBT chemicals being
considered for Form A.  In other words, in order for a facility to use
the Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.  

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of detailed release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden relief while at the same time providing valuable information to
the public consistent with the goals and statutory purposes of the TRI
program.

Further, in response to SBA’s comment that it has not heard of any TRI
analysis being impaired by the current use of Form A, EPA notes that
commenters have discussed applications of TRI data that are impacted by
Form A.  For example, Form A impacts risk rankings, such as county-level
risk rankings, generated by the Agency's Risk Screening Environmental
Indicators (RSEI) tool.  Form A impacts RSEI rankings because RSEI does
not recognize Form A in determining the comparative risk of a chemical
release quantity because Form A does not provide specific quantitative
information.  EPA notes that while RSEI is a valuable tool, it is a
screening tool that makes assumptions about chemical toxicity and
exposure pathways that may not hold true at the local level where a more
robust risk assessment can be undertaken.  More information on the
functionality and limitations of RSEI can be found at:
http://www.epa.gov/oppt/rsei.

a. Data loss has minimal impact on RSEI scores/risk profiles 

Summary of Comments (by Abt):

Two commenters expressed support for expanding Form A eligibility for
non-PBT chemicals because the impact on risk analyses is low.  The U.S.
Small Business Administration cited a study performed by E.H. Pechan &
Associates that used a health risk-based analysis that takes into
account chemical toxicity and affected population as well as volume of
chemicals released.  The study found that the 20 counties with the
largest changes in RSEI risk scores under the proposed 5,000-pound
threshold accounted for 42.8 percent of the total national change in
Form R reported risk score, and only one county, Cook County, accounted
for more than 5 percent of the total national change in risk score. 
Another commenter stated that allowing minimal releases to move to Form
A would allow the TRI database to focus more on releases that represent
a potential risk to the public.

Response:

EPA disagrees with SBA that a firm conclusion can be drawn about the
impact the proposed rule will have on analyses of risk posed by TRI
chemicals.  The Small Business Administration (SBA) contends that a
5,000-pound ARA for TRI-listed non-PBT chemicals would have little
impact on the risk profiles for these chemicals.  In drawing this
conclusion SBA relied upon EPA's Risk Screening Environmental Indicators
(RSEI) tool.  While RSEI is a valuable tool, it is a screening tool that
makes assumptions about chemical toxicity and exposure pathways that may
not hold true at the local level where a more robust risk assessment can
be undertaken.  More information on the functionality and limitations of
RSEI can be found at: http://www.epa.gov/oppt/rsei.

Another commenter asserts that by allowing facilities reporting minimal
releases to utilize Form A the TRI database could focus more attention
on releases that represent a potential risk to the public.  EPA
disagrees with this comment.  First, small releases do not necessarily
represent small risks.  Second, at the community level, a small release
may represent a significant risk.  For example, EPA is not convinced
that communities located in a ZIP code where all Form R reporting could
convert to Form A reporting under the proposal would agree with the
commenter’s sentiment.

b. Amount of data lost is very small 

Summary of Comments (by Abt):

Four commenters expressed support for expanding Form A eligibility for
non-PBT chemicals because the amount of data lost is very small.  The
U.S. Small Business Administration noted that a large number of ZIP
codes can convert entirely to Form A only because more than 550 ZIP
codes have only one or two reports.  The National Federation of
Independent Business (NFIB) noted that 99.9 percent of the information
would still be collected and that EPA’s analyses demonstrate that a
higher reporting threshold, as proposed, would meet the statutory
requirement that EPA may revise thresholds only to the extent that the
revised threshold obtains reporting on a substantial majority of total
releases of the chemical at all facilities subject to Section 313 of the
Emergency Planning and Community Right-to-Know Act (EPCRA).  

Response:

While the detailed Form R information for the approximately 14 million
pounds of releases estimated by EPA to be eligible for Form A under the
proposal represents information on less than 1% of total TRI releases
nationwide, at the local level the impact is much more pronounced.  As
discussed in the preamble to the proposed rule, under the proposed
5,000-pound ARA, 26 TRI chemicals could convert to all Form A reporting
and 655 ZIP codes with at least one TRI facility (approximately 7% of
all ZIP codes with a TRI facility) could convert to all Form A
reporting.  While these 655 ZIP codes have only one or two Form Rs
currently, for these communities the replacement of detailed Form R
information with Form A range reporting may be significant.  Commenters
have expressed concern about the loss of such TRI information at the
local level.  

Comments from States and local government, environmental and
community-based organizations, university faculty and other researchers,
investors, and concerned citizens have provided estimates of information
that may move to Form A, and in particular, the loss of Form R release
details at the local level.  Comments have included estimates of the
number of release pounds and/or Form Rs for all TRI-listed non-PBT
chemicals and specific non-PBT chemicals that may no longer be available
because of Form A eligibility under the proposed rule.  While commenters
recognize that the potential loss of the more detailed Form R release
information under the proposal represents a small percentage of TRI
releases nationally, it is at the local level that a 5,000-pound Form A
range of release and other waste management information would adversely
impact the ability to perform trend analyses, monitor the performance of
individual facilities, and more generally, meet the intended purpose of
the data collection to inform the public, government, and other data
users about releases of toxic chemicals to the environment.

ii. Burden reduction is helpful 

Summary of Comments (by Abt):

Three commenters expressed support for expanding Form A eligibility for
non-PBT chemicals because the burden reduction associated with the
proposal is helpful.  The Consumer Specialty Products Association (CSPA)
stated that facilities that are well under the higher threshold will be
spared having to do the calculations.  American Public Power Association
(APPA) stated that even small burden reduction can be really helpful to
smaller entities.  APPA noted that 117,000 hours of reporting saved is
really significant to smaller utility entities.

Response:

EPA agrees with the commenters expressing support for expanded Form A
eligibility for non-PBT chemicals that Form A provides burden relief. 
EPA acknowledges that facilities with releases and other waste
management amounts well below the threshold for Form A may be spared the
burden of detailed calculations to determine eligibility for Form A. 
EPA further allows for the possibility that Form A may amount to
significant burden reduction for small facilities.  

However, in addition to considering burden reduction, EPA has carefully
considered the concerns raised by commenters about the impact the
proposal could have on the utility of the data.  Comments from States
and local government, environmental and community-based organizations,
university faculty and other researchers, investors, and concerned
citizens have provided estimates of information that may move to Form A,
and in particular, the loss of Form R release details at the local
level.  Comments have included estimates of the number of release pounds
and/or Form Rs for all TRI listed non-PBT chemicals and specific non-PBT
chemicals that may no longer be available because of Form A eligibility
under the proposed rule.  While commenters recognize that the potential
loss of the more detailed Form R release information under the proposal
represents a small percentage of TRI releases nationally, it is at the
local level that a 5,000-pound Form A range of release and other waste
management information would adversely impact the ability to perform
trend analyses, monitor the performance of individual facilities, and
more generally, meet the intended purpose of the data collection to
inform the public, government, and other data users about releases of
toxic chemicals to the environment.

Accordingly, EPA has decided to finalize the 5,000-pound Form A ARA with
a 2,000-pound limit on releases of non-PBT chemicals.  EPA believes that
this final rule approach to expanded Form A eligibility for non-PBT
chemicals strikes a better balance than the proposed rule insofar as
providing meaningful burden relief while at the same time providing
valuable information to the public consistent with the goals and
statutory purposes of the TRI program.

B. Opposed to the proposed option 

Summary of Comments (by Abt):

Twenty-four unique comments representing 1,625 commenters expressed
general opposition to the proposed option for non-PBT chemicals.  Many
commenters wrote that the proposal would cause increased releases from
facilities eligible for Form A.   

The Ohio Environmental Protection Agency (EPA) wrote that the proposal
did not consider the toxicity of the non-PBT chemicals currently
reported under TRI.  Ohio EPA wrote that the health effects vary greatly
across TRI chemicals and the eligibility level for use of the Form A
should consider the toxicity associated with each chemical.  Several
commenters wrote that EPA seems to be ignoring its mandate to protect
the public.  One commenter wrote that the proposal ignores the
cumulative effect of small releases.  The Group Against Smog &
Pollution, Inc., wrote that the non-PBT proposal seems in opposition to
the scope and purpose of Title 40, Part 372, Toxic Chemical Release
Reporting: Community Right-To-Know.

Response: 

In response to comments opposed to the proposed 5,000-pound annual
reportable amount (ARA) for non-PBT chemicals because of the loss of
detailed Form R waste management information and in particular, the loss
of detailed information on quantities released, EPA has decided to
modify the proposed 5,000-pound ARA by placing a 2,000-pound limit on
releases of non-PBT chemicals being considered for Form A.  In other
words, based on this modification to the proposal, in order for a
facility to use the Form A Certification Statement for a non-PBT
chemical, the facility cannot have more than 5,000 pounds of total waste
management (i.e., releases, recycling, energy recovery, and treatment)
of that chemical, and the contribution of releases toward the
5,000-pound total waste management amount can be no greater than 2,000
pounds.  By placing a 2,000-pound limit on the amount of releases that
may be applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total release pounds that would no longer be
reported on Form R under the proposed rule at full utilization of Form A
and at the same time, this rule preserves almost 80% of the burden
reduction offered by the non-PBT portion of the proposed rule.  

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of additional release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden relief while at the same time providing valuable information to
the public and responding to commenters’ concerns about potential
increases in releases, the varying toxicities of TRI-listed non-PBT
chemicals, and the cumulative effect of releases.

Further, by limiting the release portion of the 5,000-pound ARA to 2,000
pounds, EPA is structuring the Form A eligibility criteria in a way that
promotes treatment and recycling over releases.  Such a structure is
consistent with national policy on pollution prevention.  Section
6602(b) of the Pollution Prevention Act of 1990 reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe 	manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

This rule caps the release portion of the 5,000-pound ARA for non-PBT
chemicals at 2,000 pounds.  By finalizing a higher quantity for
recycling, treatment, and energy recovery portions of the ARA at the
proposed 5,000-pound maximum, EPA has built into the Form A eligibility
criteria an incentive for facilities to move away from disposal and
other releases and toward treatment and recycling.  Further, by
including all waste management activities in the Form A eligibility
criteria EPA is encouraging facilities above the 5,000-pound ARA to
reduce their total waste management in order to qualify for Form A.

i. Raised threshold is inconsistent with EPCRA/ previous EPCRA rules

Summary of Comments (by Abt):

Five unique comments representing six commenters expressed general
opposition to the non-PBT proposal because raising the reporting
threshold is inconsistent with EPCRA or previous EPCRA rules.  One
commenter wrote that the proposal ignores the cumulative effect of small
releases.  The Group Against Smog & Pollution, Inc., wrote that the
non-PBT proposal seems in opposition to the scope and purpose of Title
40, Part 372, Toxic Chemical Release Reporting: Community Right-To-Know.

In a similar vein, the State Attorneys General of NY, CA, CT, IL, IA,
MD, MA, NH, NJ, NM, VT, and WI wrote that the proposed changes violate
EPCRA section 313(f)(2), and would allow violation of the TRI statutory
disclosure requirements found in EPCRA sections 313(a) and (g) and PPA
section 6607(a).  Section 313(f)(2) requires EPA to analyze the impact
on individual chemicals, not on the aggregate of all chemicals, and 
ensure the revised threshold "shall obtain reporting on a substantial
majority of total releases of the chemical at all facilities subject to
the requirements of [section 313]."  

The State Attorneys General also wrote that the EPA has not indicated
whether or not it even followed any specific definition of "substantial
majority," let alone what that definition was.  EPA appears to base its
conclusion that the non-PBT chemical reporting changes meet the
"substantial majority" standard on figures representing the percentage
of releases, taken as an aggregate, of all chemicals that would no
longer be reported under the proposed rule.  But this is contrary to
law, according to the commenters, since the plain language of the EPCRA
section 313(f)(2) requires an individualized analysis for each chemical.
 EPA’s assertion that the proposal meets the substantial majority
standard based on aggregate figures is contrary to the law.

EPA’s chemical-by-chemical analysis shows that the proposed rule could
result in the loss of disclosure of 100 percent of the releases from at
least 26 chemicals or classes of chemicals, amounting to six percent of
the chemicals or classes that would be affected by the proposed rule. 
In New Hampshire, the proposed rule could completely eliminate reporting
of at least 49 of the 81 chemicals currently reported.  Reporting zero
percent of releases for a chemical is clearly not reporting a
"substantial majority" of releases, and thus the proposed rule is
unlawful for these chemicals under any interpretation of the standard. 
Indeed, Congress instructed that the TRI reporting requirements "should
be construed expansively to require the collection of the most
information permitted under the statutory language."  Taking 95 percent
as the minimum acceptable definition of "substantial majority," and
using EPA's own figures and methodology, 119 chemicals or classes would
fail the statutory test - i.e., would lose reporting for five percent or
more of releases - if the proposed rule were finalized.

Although using EPA's figures shows that the proposed rule would violate
EPCRA, in fact the matter is even worse because EPA's figures likely
underestimate the information that will no longer be required to be
reported under the proposed rule.  EPA does not explain, in either the
proposed rule or the economic analysis, how it calculated the percentage
of releases no longer required to be reported on Form R, and for that
reason alone EPA's conclusions are arbitrary and capricious and an abuse
of discretion.  The State Attorneys General also stated that EPA’s
analysis improperly limited the dataset by excluding Form Rs with ARAs
of 500 pounds or less when considering whether the proposed revised
threshold would obtain reporting on a substantial majority of total
releases of the chemical at all facilities subject to the requirements
of section 313.  According to the State Attorneys General, the only
lawful and rational interpretation of the statute is that the dataset
used to determine whether a particular chemical meets the substantial
majority test must include all releases for that chemical, not just
those that must be reported under the then-existing reporting
thresholds. [An extended critique of the method can be found in the
comment, docket ID 4553.] 

OMB Watch wrote that, at the community level, the difference between 500
pounds and 5,000 pounds of toxic releases is enormous.  According to the
Code of Federal Regulations, the purpose of the toxic reporting under
the TRI program is to inform communities.  It states specifically that,
"The information collected under this part is intended to inform the
general public and the communities surrounding covered facilities about
releases of toxic chemicals, to assist research, to aid in the
development of regulations, guidelines, and standards, and for other
purposes."

Response: 

EPA disagrees with commenters that the proposed rule expanding Form A
eligibility for non-PBT chemicals is inconsistent with the provisions
authorizing changes to TRI reporting thresholds.  However, because of
concerns raised by commenters over the loss of information on releases
of non-PBT chemicals, EPA has decided to modify the proposed 5,000-pound
ARA by placing a 2,000-pound limit on releases of non-PBT chemicals
being considered for Form A.  

This final rule is consistent with the authority given to EPA by EPCRA
section 313(f)(2).  As discussed in the preamble to the proposed rule,
EPCRA allows EPA to adjust the reporting thresholds so long as the
adjusted thresholds "obtain reporting on a substantial majority of total
releases of the chemical at all facilities subject to the requirements
of this section."  Under this rule, Form A eligibility is being extended
to facilities reporting on non-PBT chemicals with Annual Reportable
Amounts (ARAs) not exceeding 5,000 pounds and release amounts
contributing no more than 2,000 pounds toward the 5,000-pound ARA. 
Under this rule, each Form A continues to serve as a range report,
informing the public that total releases is in the range of zero to
2,000 pounds and that total waste management (which includes releases)
is in the range of zero to 5,000 pounds.

Furthermore, Form A provides important information.  TRI data users are
currently able to access Form A facility information via Envirofacts and
TRI Explorer (http://www.epa.gov/triexplorer) in the same manner that
Form R facility information is accessed.  Form A informs data users that
a facility is a potential source of releases and other waste management
activities.  Using EZ Query in Envirofacts
(http://www.epa.gov/envirofacts), data users are able to access
individual chemical Form As along with the TRI Facility Identification
Numbers (TRIFIDs) and the names of facilities submitting Form As.  

With regard to the concern of the State Attorneys General that EPA’s
analysis improperly limited the dataset assessing the impact of the
proposed 5,000-pound Form A threshold by excluding Form Rs with ARAs of
500 pounds or less, EPA did, in fact, consider the potential
non-reporting of detailed Form R release information against total
releases reported under TRI, including those releases reported for Form
Rs with ARAs of 500 pounds or less. (See document TRI-2005-0073-0020
located at   HYPERLINK "http://www.regulations.gov"  www.regulations.gov
)  In addition, EPA emphasizes that under this rule, each Form A
continues to serve as a range report, informing the public that total
releases is in the range of zero to 2,000 pounds and therefore Form A
continues to obtain reporting on a substantial majority of total
releases of every TRI-listed chemical at all facilities as required be
EPCRA § 313(f)(2).  42 U.S.C. § 11023(f)(2).

ii. Unacceptable data loss 

Summary of Comments (by Abt):

Nineteen unique commenters representing 12,907 commenters expressed
general opposition to the proposed option for non-PBT chemicals because
the resulting data loss is unacceptable.  Many commenters wrote that the
gaps in publicly available data would harm communities.  Other
commenters wrote that the data loss would harm investors and regulators.
 The Social Investment Research Analysts Network (SIRAN) wrote that the
proposal would deprive investors of potentially useful information about
companies’ risks and potential liabilities from releases or handling
of even small amounts of many TRI-listed chemicals.  SIRAN sees no
compelling need to weaken the rights of investors to gain a full picture
of these risks.

Other commenters discussed the substantial size of the data loss. 
Robert Colby of the Association of Local Air Pollution Control Officials
and Vinson Hellwig of the State and Territorial Air Pollution Program
Administrators (two national associations of state and local air
pollution control officials), wrote that EPA has estimated that the
proposal would affect approximately one-third of those facilities
reporting to the TRI.  That represents a significant amount of data that
would no longer be available to the public.  The Philadelphia Department
of Public Health wrote that Form A requires no numerical information
from reporting facilities, only the chemical name.  If this proposal
moves forward, Philadelphia will lose all data about a wide range of
significant environmental releases.  There are 57 facilities in
Philadelphia currently reporting under the TRI.  In 2003, the 14
facilities that would have no longer been required to report on Form R
under the proposal released 7,857 pounds of toxins. While this quantity
may not mean much at the national level, it is very significant at the
community level.  Wilman Chan of the California State Assembly wrote
that it is clear that California will lose an unacceptable amount of
information. 

Some commenters discussed the inadequacy of Form A.  The National
Environmental Trust stated that the proposal calls the certification
statement "Form A" even though it does not meet the statutory
requirements for information required on a TRI reporting form.  The
certification statement requires no numerical information from reporting
facilities, only the chemical name.  Strictly speaking, it cannot
actually be called a "form" for TRI reporting purposes.

Several State Attorneys General wrote that EPA contends that a data user
"may" be able to predict what waste management activity is likely to be
used at a facility for non-PBT chemicals.  They stated that EPA provides
no support for this proposition, and it seems unlikely to be true as a
general matter since non-PBT chemicals are so numerous and waste
quantities of a particular chemical may be dealt with in multiple ways.

Response:

In response to comments opposed to the proposed 5,000-pound annual
reportable amount (ARA) for non-PBT chemicals because of the loss of
detailed Form R waste management information and in particular, the loss
of detailed release information used by States, communities, investors,
and other TRI data users, EPA has decided to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By placing a 2,000-pound limit
on the amount of releases that may be applied to the 5,000-pound ARA for
Form A eligibility, this rule preserves almost 60% of the total release
pounds that would no longer be reported on Form R under the proposed
rule at full utilization of Form A and at the same time, this rule
preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.   

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of additional release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden reduction while at the same time ensuring that the intended
purposes of the TRI data are satisfied.    

 

Furthermore, EPA believes that Form A provides valuable information to
data users.  TRI data users are currently able to access Form A facility
information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As. 

Additionally, as discussed in the preamble to the proposed rule, for
today's action the Agency has considered existing Form A utilization. 
Specifically, the Agency observed that only slightly over half of the
forms (54%) potentially eligible for Form A use take advantage of that
option.  The Agency believes there are a number of potential reasons for
this utilization rate, including the desire to showcase pollution
prevention efforts on Form R and the desire to demonstrate good
environmental stewardship.  Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization is likely to be
significantly higher at a 5,000-pound ARA with a 2,000-pound release
limit than it has been to date at the 500-pound ARA threshold.

 

a. Impacts community understanding of pollution/right-to-know 

Summary of Comments (by Abt):

Eighteen unique comments representing 5,994 commenters expressed general
opposition to the proposed option for non-PBT chemicals because the
resulting data loss would leave communities with an insufficient
understanding of local pollution.  Many commenters said the public has a
basic right to know what is released into the environment.

 

James Jeffords and five other US Senators wrote that they are concerned
about EPA's proposal to allow thousands of facilities to withhold
details about pollution volumes, waste management and treatment if they
release less than 5,000 pounds of toxic chemicals annually. Although
such volumes may constitute only a small percentage of total national
releases, neighbors and communities surrounding a facility that releases
thousands of pounds of toxic chemicals consider the data invaluable.  

Many commenters wrote about the local impact of the proposal.  The
Natural Resources Defense Council wrote that the proposal would cause
the loss of detailed data on over 12,000 chemical releases from more
than 6,400 facilities.  NRDC stated that EPA’s national estimate of
data loss overlooks significant impacts on data availability at the
local level.  While a 5,000-pound ARA of a particular chemical may
represent only a small fraction of its nationwide releases, 5,000 pounds
is a substantial amount for a community exposed to chemical releases
from a local facility.  Having the detailed information on quantities of
chemical releases and production-related waste contained in Form R is
necessary for these communities to track facilities' progress in
reducing chemical emissions and to address local concerns regarding
chemical exposures.  

The Denver Department of Environmental Health wrote that the proposal
would decrease the amount of relevant information that is available to
the public, and estimated that perhaps one-quarter of the chemicals
currently reported under Form R in Denver will be eligible for Form A. 
The League of Women Voters of California wrote that if the reporting
thresholds are increased tenfold, about 100 communities in California
would lose more than half of the reports currently collected.  While the
current, lower threshold may seem trivial on a national scale, it may be
a serious health and safety concern for the community surrounding a
facility.  Critical information for local planning would be lost with
this proposal.  

Several State Attorneys General wrote that, since impacts may extend
beyond the ZIP code in which the reporting facility is located, EPA
should do a county-by-county analysis, as apparently was done in the
1994 Form A rulemaking, and should also do analyses based on the
population within a fixed radius (1 mile, 3 miles, 10 miles) of the
facilities for which reporting would be lost under the proposed rule.
These analyses should also include evaluation of the possibility of
disproportionate impacts on minority and low-income individuals,
pursuant to EPA's obligations under the Executive Order 12898 on
environmental justice.

Response:

In response to commenters’ concerns over the loss of detailed Form R
waste management information and in particular, the loss of local level
information on quantities released, EPA has decided to modify the
proposed 5,000-pound ARA by placing a 2,000-pound limit on releases of
non-PBT chemicals being considered for Form A.  In other words, based on
this modification to the proposal, in order for a facility to use the
Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.   

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of additional release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden reduction while at the same time addressing concerns about the
provision of detailed information to local communities and ensuring that
the intended purposes of the TRI data are satisfied.    

The comment from the State Attorney’s General states that EPA should
do analysis beyond the ZIP Code analysis already completed such as
county-level analyses and analysis for populations within a specific
fixed radius of facilities.  As discussed in the preamble to the
proposed rule, EPA decided to use ZIP codes instead of counties to
characterize the rule’s impact at the local level because EPA believed
ZIP codes would provide a better measure of local impacts.  

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities. 

(1) Potential loss of all data for a facility or all facilities in a
local community 

Summary of Comments (by Abt):

Forty-two unique comments representing 46 commenters expressed general
opposition to the proposed option for non-PBT chemicals.  

Many environmental organizations and state agencies wrote in with
statistics detailing the loss of data for communities and facilities
that would result from the proposal.

Nationwide, 10% of communities would lose 100% of their Form R
reporting.  For individual states, the following sample statistics were
submitted:

0-10% of communities statewide losing all reporting: MN, RI, WI, PA, SD.

11-20% of communities statewide losing all reporting: NH, ME, CA, MI,
FL, NC, NY.

21-40% of communities statewide losing all reporting: WA, VT.

41-80% of communities statewide losing all reporting: MA, CO.

Nationwide, 18% of communities would lose 50% of their Form R reporting.
 For individual states:

11-20% of communities statewide losing 50% reporting: MN, SD.

21-40% of communities statewide losing 50% reporting: CA, NH, ME, FL.

Nationwide, 27% of communities would lose 25% or ‘some’ of their
Form R reporting.  For individual states:

11-20% of communities statewide losing 25% or ‘some’ reporting: MN,
WI.

41-80% of communities statewide losing 25% or ‘some’ reporting: ME,
RI.

80-100% of communities statewide losing 25% or ‘some’ reporting: WA,
CA, MI, VT.

Commenters also wrote in to detail the number of facilities that would
be eligible to stop 100% of their Form R reporting.  Nationwide, 3,849
facilities would be eligible.  For individual states:

states with 0-25 facilities to stop 100% Form R reporting: VT, SD, NM,
DE, RI.

states with 25-50 facilities to stop 100% Form R reporting: WA
(according to the North American Hazardous Materials Management
Association, DOCKET id 2030), NH, CT, ME, CO.

states with 51-100 facilities to stop 100% Form R reporting: AZ, IA, OR,
WA(docket ID#2057), MN.

states with 101-200 facilities to stop 100% Form R reporting: WI, NH,
MA, NY, FL, NC, MI.

states with 201-300 facilities to stop 100% Form R reporting: TX, OH,
CA.

Commenters also wrote in to detail the percentage of communities that
would lose Form R reporting on 50% of the releases from their local
facilities.  Nationwide, 13% of communities would lose Form R reporting
on 50% of the releases in their communities.  For individual states:

states with 0-10% of their communities losing 50% Form R reporting (by
releases): ME, MN.

states with 11-20% of their communities losing 50% Form R reporting (by
releases): SD, NH, CA.

Commenters also wrote in to detail the percentage of communities that
would lose Form R reporting on 25% of the releases from their local
facilities.  Nationwide, 16% of communities would lose Form R reporting
on 25% of the releases in their communities.  For individual states:

states with 11-20% of their communities losing 25% Form R reporting (by
releases): SD, MN, ME, NH.

states with 21-40% of their communities losing 25% Form R reporting (by
releases): CA.

Additionally, one commenter wrote that specific communities in Los
Angeles will be most affected.  Communities in more than 90 ZIP codes in
LA County, from Long Beach to the West Side to San Bernardino will lose
some or all of the pollution information about chemical releases in
their neighborhoods.  The Environment Maine Research and Policy Center
wrote that, at just one pulp and paper mill in Maine, the changes could
eliminate reporting on 5-10 chemicals, according to an industry
spokesperson.  

The North American Hazardous Materials Management Association wrote that
in Washington State approximately one third (33%) of the non-PBT reports
would qualify for Form A.  About 50 out of 350 current TRI facilities
would move completely to Form A reports for all chemicals.  Eight of
these facilities were among the highest risk facilities in the 2002
reporting year.  In Minnesota, the proposed change would eliminate
upwards of 300, or nearly 25% of the 1,250 Form Rs submitted annually. 
It would eliminate currently available detailed data for 68 of the 418
industrial facilities that currently report to the Toxics Release
Inventory.

The New Jersey Department of Environmental Protection wrote that an
analysis of its 2004 Release and Pollution Prevention Report (RPPR) data
shows that 453 facilities submitted 1,831 chemical reports for
substances that are not considered to be PBTs. These facilities are
located in 173 municipalities.  Under the burden reduction proposal,
these reports for 2004 would conceal more than 548,000 pounds of
production-related waste (or nonproduct output (NPO)).  Releases
accounted for more than 155,000 pounds of this NPO. These same
facilities reported 54.6 million pounds of toxic chemicals shipped as
(or in) product.

The Washington Department of Ecology wrote that, under this proposal,
Washington  State will lose valuable data concerning up to 1.5 million
pounds of releases annually in communities throughout the state, plus
all release data for eight of the top 40 facilities with the highest
relative risk ranking, based on 2002 data.  The Sierra Club wrote that,
in Broward County, chemical facilities like Chemical Packaging
Corporation, a producer of chemical solvents, would be exempt from
reporting.  The facility uses Trichloroethane - a federal hazardous air
pollutant, exposure to which can lead to dizziness, vomiting and
respiratory arrest.

Response:

As discussed in the preamble to the proposed rule, under the proposed
5,000-pound ARA, 26 TRI chemicals could have all reporting convert to
Form A and 655 ZIP codes with at least one TRI facility (approximately
7% of all ZIP codes with a TRI facility) could have all reporting
convert to Form A.  While these 655 ZIP codes have only one or two Form
Rs, for these communities the loss of the Form R information may be
significant.  Commenters have expressed concern about the loss of TRI
information at the local level.  Comments from States and local
government, environmental and community-based organizations, university
faculty and other researchers, investors, and concerned citizens have
provided estimates of the loss of detailed Form R information, and in
particular, the loss of detailed Form R release information at the local
level.  Comments have included estimates of the number of release pounds
and/or Form Rs for all TRI listed non-PBT chemicals and specific non-PBT
chemicals that may no longer be available because of Form A eligibility
under the proposed rule.  While commenters recognize that the potential
loss of detailed Form R release information under the proposal
represents a small percentage of TRI releases nationally, it is at the
local level that a 5,000-pound Form A range of release and other waste
management information would adversely impact the ability to perform
trend analyses, monitor the performance of individual facilities, and
more generally, meet the intended purpose of the data collection to
inform the public, government, and other data users about releases of
toxic chemicals to the environment.  In response to concerns over the
loss of detailed TRI waste management information, and in particular,
Form R information about releases at the local level, EPA has decided to
modify the proposed 5,000-pound ARA by placing a 2,000-pound limit on
releases of non-PBT chemicals being considered for Form A.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.  EPA believes that this final
rule approach to expanded Form A eligibility for non-PBT chemicals
strikes a better balance than the proposed rule insofar as providing
meaningful burden reduction while at the same time ensuring that the
intended purposes of the TRI data are satisfied.    

b. Pounds of total releases/production-related wastes 

Summary of Comments (by Abt):

Twenty commenters expressed general opposition to the proposed option
for non-PBT chemicals stating that the loss of data for particular
chemicals and total releases is unacceptable.

Many environmental organizations and State agencies wrote in with
statistics detailing the loss of data for particular chemicals and
pounds of total releases that would result from the proposal.  For
example:

Chemicals that could lose 33-80% of Form R reporting statewide: benzene
(MN), chromium compounds (NH), diisocyanates (ME, MN), hydrogen fluoride
(ME), mercury (NH), n-hexane (SD, ME), nickel (CA), sodium nitrite (SD),
toluene diisocyanate (mixed isomers) (ME), Zinc compounds (SD).

Chemicals that could lose 90-100% of Form R reporting statewide:
1,3-butadiene (MN), arsenic (NC), arsenic compounds (ME, NJ), benzene
(SD), di-(2-ethylhexyl) phthalate (CA, MN), formaldehyde (DE), manganese
(NH), MTBE (DE), naphthalene (SD), n-hexane (NH), nickel compounds (ME),
selenium (TX), tetrachloroethylene (DE), toluene diisocyanate (mixed
isomers) (CA, NM), Zinc (fume or dust) (SD).

CA also reported the expected loss of 20,150 pounds of ethylbenzene. 
Commenters also reported the expected losses nationwide: 60% of the Form
R reporting for arsenic compounds, 50% for benzene, 66% for
di-(2-ethylhexyl) phthalate, 70% for diisocyanates, and 100% for
toluene-2,6-diisocyanate.

The New Jersey Department of Environmental Protection wrote that based
on examining data reported for the last 10 years (1995 - 2004), if the
proposed 5,000-pound threshold were in effect, detailed release and
waste management data (nonproduct output or “NPO”) of more than one
million pounds of cancer-causing compounds would not have been revealed.
 Lead was not included in this analysis since it is also a PBT.  Details
such as the following would not have been available to the public:
21,000 pounds of production-related waste (NPO) for the carcinogen
arsenic, among others, would not have been reported (this would mean
that all arsenic data would be lost); 122,465 pounds of styrene
production-related waste would not be reported; and nearly 175,000
pounds of chromium (in compounds) production-related waste would not be
reported. [For details, see text and tables on p. 3-7, Document ID
2235.2]

The South Carolina Department of Health & Environmental Control wrote
that arbitrarily increasing the Form R reporting threshold for non-PBT
chemicals as stated in their proposal will remove 643 of the 1,495 Form
R electronic submissions in South Carolina based on 2003 figures.  EPA's
Risk Screening Environmental Indicators tool shows that losing 43%
percent of the state's non-PBT chemical reports will also remove any
record of the on-site releases to air and water that comprise 32% of the
State's total relative risk score.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, and WI wrote that among the chemicals for which the proposed rule
could eliminate 100 percent of release disclosures is
toluene-2,6-diisocyanate ("2,6-TDI").  2,6-TDI is a highly volatile
substance that is reasonably anticipated to be a carcinogen; can
irritate and burn the skin and eyes on contact; and can irritate the
nose, throat, and lungs if inhaled, potentially causing pulmonary edema.
 Two-thirds of the total nationwide reported 2003 on-site releases of
that chemical to the air (i.e., 967 out of 1,427 pounds), came from the
Cytec Olean facility in Olean, New York, which reported a maximum amount
of over 10,000 pounds of 2,6-TDI on site.  The Cytec Olean facility is
within 1.3 miles of four elementary schools.  If EPA finalizes the
proposed rule, this facility might qualify for Form A with regard to its
2,6-TDI emissions, and if so, 15,000 residents of Olean might no longer
have any way of knowing the amount of that dangerous chemical released
from the plant near these schools, or the maximum amount of the chemical
on the plant site.  If it qualifies for Form A, Cytec Olean might be
able to increase its releases of this chemical fivefold without
disclosure to Olean's residents or first responders, or any governmental
authority.  The State Attorneys General wrote that in New York State,
the rule could result in the loss of information concerning
approximately 380,000 pounds of chemical releases.

The Oklahoma Department of Environmental Quality wrote that with 2003
data, of 1,178 reports filed in Oklahoma, 203 were Form A submissions. 
However, if the rule change went into effect, the number of Form A
submissions would go to 772.  The percentage of total submissions on
Form A would rise from 17% to 65% total submissions on Form A. Oklahoma
would have no data on the releases, transfers, reuse or treatment for
the majority of TRI submissions for a given year.  Again, based on 2003
as the example, 371,498 pounds of releases would go unreported. 

The Minnesota Pollution Control Agency wrote that the rule would
eliminate upwards of 400, or over 30%, of the 1,250 Form Rs submitted
annually in Minnesota.

Cathy Cloutier of Delaware House of Representatives wrote in support of
the Delaware Department of Natural Resources and Environmental
Control’s comments regarding the loss of all or most of the numerical
data regarding the release of dozens of chemicals that would be lost
under this proposal, including formaldehyde, tetrachloroethylene (TCE)
and MTBE.  Both TCE and MTBE have contaminated ground water at several
locations - from Elsemere in the north to Rehoboth Beach in the south -
resulting in severe drinking water supply damages, costing millions of
dollars and threatening homes with vapor intrusion from toxic
underground contamination.

The Philadelphia Department of Public Health wrote that the following
type of local releases to the air, for which data would not have been
reported under EPA's current proposal: 3,343 pounds of the recognized
carcinogen trichloroethylene; 560 pounds of the recognized developmental
toxicant toluene; and 512 pounds of the suspected neurotoxicant xylene.

Washington Department of Ecology wrote that the state will lose valuable
data concerning up to 1.5 million pounds of toxic releases annually in
and near communities throughout the state.  Additionally, Washington
could lose all release data for eight of the top 40 facilities with the
highest relative risk ranking, based on 2002 data.

Law Environmental, Inc., wrote that the proposal would result in 12,201
fewer Form Rs, and lost reporting for 14 million pounds of releases and
25 million pounds of total production-related waste.

Response:

Comments from States and local government, environmental and
community-based organizations, university faculty and other researchers,
investors, and concerned citizens have provided estimates of the loss of
detailed Form R information, and in particular, the loss of detailed
Form R release information at the local level.  Comments have included
estimates of the number of release pounds and/or Form Rs for all TRI
listed non-PBT chemicals and specific non-PBT chemicals that may no
longer be available in detail because of Form A eligibility under the
proposed rule.  While commenters recognize that the potential loss of
Form R release information under the proposal represents a small
percentage of TRI releases nationally, it is at the local level that a
5,000-pound Form A range of release and other waste management
information would adversely impact the ability to perform trend
analyses, monitor the performance of individual facilities, and more
generally, meet the intended purpose of the data collection to inform
the public, government, and other data users about releases of toxic
chemicals to the environment.  In response to these concerns over the
loss of TRI waste management information, and in particular, the loss of
detailed Form R information about releases at the local level, EPA has
decided to modify the proposed 5,000-pound ARA by placing a 2,000-pound
limit on releases of non-PBT chemicals being considered for Form A.  By
placing a 2,000-pound limit on the amount of releases that may be
applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total release pounds that would no longer be
reported on Form R under the proposed rule at full utilization of Form A
and at the same time, this rule preserves almost 80% of the burden
reduction offered by the non-PBT portion of the proposed rule.  EPA
believes that this final rule approach to expanded Form A eligibility
for non-PBT chemicals strikes a better balance than the proposed rule
insofar as providing meaningful burden reduction while at the same time
ensuring that the intended purposes of the TRI data are satisfied.    

c. Affects use of data in other regulatory programs/policy-setting 

Summary of Comments (by Abt):

Nine unique submissions representing 13 commenters expressed general
opposition to the proposed option for non-PBT chemicals because the loss
of detailed data could affect other regulatory programs or
policy-setting efforts.  

Several commenters wrote about EPA’s Risk Screening for Environmental
Indicators (RSEI) program, and the impact that the proposal would have
on it.  The National Environmental Trust wrote that RSEI is built in
large part on the premise that a small amount of releases of a more
toxic or hazardous chemical can be more dangerous than a larger release
of a less toxic substance.  This allows for more efficient prioritizing
of reduction programs or projects with the aim of reducing overall
hazard or risk.  The RSEI program relies exclusively on TRI data and
would be considerably less effective with the proposed Form A changes
that would remove reporting for some small facilities.  Don't Waste
Arizona, Inc., wrote that EPA would invalidate RSEI with these data
changes, and waste all the money that has been spent on developing RSEI.

The National Environmental Trust also wrote that EPA should be concerned
about small facilities because some of their releases consist of
Hazardous Air Pollutants (HAPs) regulated under the Clean Air Act.  The
national, regional, and local modeling done to predict ambient
concentrations of these chemicals uses TRI data and is likely to be
affected by sources dropping out -- even sources of 5,000 pounds per
year or less could have a significant impact on the modeling.  EPA's
documentation for this proposal does not indicate that the Agency has
considered the impact of collecting less data on releases of HAPs on the
Agency's ability to track and potentially regulate those chemicals. 
Nationwide, 28% of forms for HAPs would contain no data under the
proposed Form A changes.  In Maine, the figure is also 28%.  It is
difficult to believe that the state or federal air program offices would
want to sacrifice the collection of these data in TRI--particularly
since it is the only chemical- and site-specific database the Agency has
for these substances.

The North American Hazardous Materials Management Association wrote that
these losses of detailed information would significantly undermine the
quality of state and local data that is used in tracking, targeting, and
providing technical pollution prevention assistance which most often
results in cost savings for industry from reduced waste and expenses
associated with managing hazardous materials. 

The New York State Department of Environmental Conservation wrote that
the Division of Air Resources and agencies in other states are able to
assign allowable stack emission rates based upon accepted reference
concentrations (RfCs) developed by EPA.  Allowable stack emissions can
be derived using generic assumptions for stack height and stack flows,
thus making it possible to compare toxic compounds based upon their
emission rates.  The comment points to examples that show how raising
the annual reportable limit from 500 pounds to 5000 pounds, regardless
of the toxicity of the chemical, is bad public policy and impedes the
protection of public health.  Three compounds [hydrogen cyanide, acrylic
acid, hexachlorocylopentadiene] could have air emissions that result in
impacts greater than their respective RfCs at the facility fenceline but
with the submittal of Form A, the end-user will have no information on
releases of these compounds.  [For details/table, see p. 3, Document ID
2061.1]  

The New York State Department of Environmental Conservation also wrote
that the proposal fails to address that the additional 12,000 small
facilities tend to be located in dense urban areas where EPA and state
agencies have been implementing Environmental Justice (EJ) programs. 
The majority of small facilities are classified as area sources under
the EPA's 1990 Clean Air Act National Emission Standard for Hazardous
Air Pollutants (NESHAP) program and have no emission reporting
requirements.  Whereas some states keep track of these small facilities,
the public uses TRI as a source of data for these small facilities.  The
loss of data for these size facilities will only make state and federal
EJ programs difficult to implement.

The South Carolina Department of Health & Environmental Control wrote
that the following consequences of the proposal can be anticipated based
on analysis of 2003 data:  (1) three of the top 10 chemical releases
ranked for relative risk will be erased; (2)  investigating numerous
releases of concern will be taken out of the hands of state government; 
(3) tracking the impact of regulatory programs through TRI such as
Maximum Achievable Control Technology and tightened parameters for
Priority Pollutants will be lost; and (4) the opportunity to compare
heavy metal releases with permit limits will be lost.

Response:

EPA agrees with commenters that the proposed expansion of Form A
eligibility for non-PBT chemicals can impact risk rankings such as
county-level risk rankings generated by the Agency's Risk Screening
Environmental Indicators (RSEI) tool.  This is because RSEI does not
recognize Form A in determining the comparative risk of a chemical
release quantity because Form A does not provide specific quantitative
information.  EPA also notes, however, that while RSEI is a valuable
tool, it is a screening tool that makes assumptions about chemical
toxicity and exposure pathways that may not hold true at the local level
where a more robust risk assessment can be undertaken.  More information
on the functionality and limitations of RSEI can be found at:
http://www.epa.gov/oppt/rsei.

With regard to the impact on information about Hazardous Air Pollutants
(HAPs) recognized under the Clean Air Act, the Agency factored into its
decision-making that a significant percentage of the approximately
12,000 Form Rs estimated to be newly eligible for Form A under the
proposal would be comprised of HAP chemical reports.  In particular, EPA
estimates that 32 specific HAP chemicals identified by the Agency as
“priority urban air toxics” could account for as many as 2,600 of
the 12,000 Form As at issue under the proposal.  In other words, these
32 high-priority chemicals (approximately 5% of all the TRI listed
non-PBT chemicals) could account for about a quarter of all newly
eligible Form As.

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities. 

Further, comments from States and local governments, environmental and
community-based organizations, university faculty and other researchers,
investors, and concerned citizens have provided estimates of the loss of
detailed Form R information, and in particular, the loss of detailed
Form R release information at the local level.  Comments have included
estimates of the number of release pounds and/or Form Rs for all TRI
listed non-PBT chemicals and specific non-PBT chemicals that may no
longer be available in detail because of Form A eligibility under the
proposed rule.  While commenters recognize that the potential loss of
detailed Form R release information under the proposal represents a
small percentage of TRI releases nationally, it is at the local level
that a 5,000-pound Form A range of release and other waste management
information would adversely impact the ability to perform trend
analyses, monitor the performance of individual facilities, and more
generally, meet the intended purpose of the data collection to inform
the public, government, and other data users about releases of toxic
chemicals to the environment.  

In response to all of the above-noted concerns about the loss of
detailed TRI-waste-management information, and in particular, the
impacts from the loss of detailed Form R information on releases at the
local level, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals being
considered for Form A.  By placing a 2,000-pound limit on the amount of
releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden reduction while
at the same time ensuring that the intended purposes of the TRI data are
satisfied.    

d. Impact on public health  

Summary of Comments (by Abt):

Sixteen commenters expressed general opposition to the proposed option
for non-PBT chemicals, because of the impact on public health.  Many
commenters felt that the proposal would result in increased releases,
with associated adverse health effects.  Several commenters mentioned
vulnerable subpopulations.  The League of Women Voters wrote that it
would especially impact children and the elderly.

Several commenters also mentioned that there is considerable uncertainty
associated with adverse health effects from toxics, and recent studies
have suggested that adverse effects can happen at lower levels of
exposure than previously expected.  The Group Against Smog & Pollution,
Inc. provided as an example, a study that was recently done in Miami
Oklahoma, with funding of $20,000 given by Harvard University to Dr.
David Bellinger, a researcher with Children's Hospital in Boston to
conduct a study of metals through a hair sampling analysis with a mass
spectrometer.  The results of this 2004 study showed that there was an
inverse relationship between exposure to arsenic and manganese and
verbal learning ability; but both metals had to be present to see this
result. The study was conducted with participants living either in or
near the national Tar Creek Superfund site. This was only one small
study but it highlights what is not known about the toxic components of
the ambient air and their health effects. 

Several State Attorneys General wrote that more than 130 facilities in
New York would be able to stop all quantitative reporting on Form R, and
over 165 facilities would be able to stop quantitative reporting on Form
R for at least one chemical.  Because each of the over 165 facilities
potentially covered by the new rule would be able to avoid, on average,
reporting on 3.88 chemicals released to the environment, the unreported
releases could create almost 14 million potential individual exposures
to unreported chemical releases in New York alone (3.5 million citizens
x 3.88 chemicals = 13.74 million potential chemical exposures).  The
proposed rule would hit areas of high population density in New York
hard.  Quantitative reporting regarding 92 separate releases, totaling
21,774 pounds of chemicals, would no longer be required in extremely
high-density ZIP code areas (population density greater than 10,000
persons per square mile).  Similarly, quantitative reporting regarding
137 separate releases, totaling 31,571 pounds of chemicals, would no
longer be required in high-density ZIP code areas (population density
greater than 5,000 persons per square mile).  Furthermore, as the data
in Table 2 below demonstrate, these densely populated neighborhoods,
affected by tons of chemicals that could escape reporting, have a
disproportionately high proportion of minority and low-income residents.
[Table 2 provided in Document ID 4553, p.19.]

An area in the town of Tonawanda, New York, offers one particularly
striking example 

of the possible aggregate effects of the rule.  TRI chemicals can have a
variety of harmful effects: they can cause neurological damage,
respiratory problems, blood disorders, and problems in fetal
development.  In Tonawanda's ZIP Code 14150 -- home of 45,000 residents
-- environmental releases of 8,100 pounds of neurotoxic chemicals; 3,100
pounds of chemicals that cause respiratory problems; 650 pounds of
hematotoxic chemicals; and 2,300 pounds of chemicals that cause
developmental problems could go unreported under the proposed rule. 
Even if the proposed regulations would still require reporting of some
releases in a ZIP code, there could still be an unacceptable loss of
information about chemicals released to the local environment.

Response:

Many commenters expressed concern over the increase in releases they
believe will result from the proposed rule.  Commenters expressed
concern about increased exposures to unreported releases and the
possibility of adverse health effects, particularly in densely populated
neighborhoods with a high proportion of minority and low-income
residents. 

In response to concerns that the proposed rule's 5,000-pound ARA for
non-PBT chemicals could result in less Form R information on releases
with associated adverse health effects, EPA has decided to modify the
proposed 5,000-pound ARA by placing a 2,000-pound limit on releases of
non-PBT chemicals being considered for Form A.  In other words, based on
this modification to the proposal, in order for a facility to use the
Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.  EPA believes that this final
rule approach to expanded Form A eligibility for non-PBT chemicals
strikes a better balance than the proposed rule insofar as providing
meaningful burden reduction while at the same time ensuring that the
intended purposes of the TRI data are satisfied.      

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities. 

e. Data needed to support pollution reduction efforts 

Summary of Comments (by Abt):

Seven unique submissions representing 11 commenters expressed general
opposition to the proposed option for non-PBT chemicals, because the
data that would be lost under the proposal is needed to support
pollution reduction efforts.

The National Environmental Trust wrote that, while the proposal mainly
discusses burden reduction for the reporting facility, EPA appears to
believe that 5,000 pounds of production-related waste is a small amount,
and therefore the Form A exemption will apply only to smaller
facilities.  However, there are four reasons that the proposed Form A
eligibility expansion will hinder efforts to promote pollution
prevention and could lead to non-reporting of significant releases: 1)
we know that these small facilities tend to have a larger percentage of
their production-related waste as releases to the environment than
larger facilities; 2) EPA’s Risk Screening for Environmental
Indicators (RSEI) program would be considerably less effective with the
proposed Form A changes that would remove reporting for some small
facilities; 3) TRI is the only chemical- and site-specific database the
Agency has for Hazardous Air Pollutants (HAPs) regulated under the Clean
Air Act; and 4) the proposal ignores non-production-related waste. 
One-time or periodic activities such as dismantling refractory furnaces
and other maintenance activities can lead to significant releases to the
environment, even at small facilities, as can accidental releases. 
However, these activities are not considered in calculating
production-related waste.  Depending on the circumstance, an accidental
release might not even be included in the threshold for TRI reporting. 
Imagine the scenario in which the Bhopal Union Carbide facility were
located in the U.S., but did not have to report its well-publicized and
deadly accidental 40-ton release to TRI because the rest of its
activities were small enough to meet the 5,000-pound Form A threshold. 
The prospect might sound far-fetched, but the reality is that the
proposed change to the Form A threshold means that 20% of total
non-production-related releases would no longer be reported.  According
to the 2003 TRI data, 124 facilities would not have to report
non-production releases of 1,000 pounds or more; for 10 of those
facilities, the amount is more than 100,000 pounds. 

The Minnesota Technical Assistance Program wrote that the proposal would
affect the program’s ability to identify pollution prevention
opportunities and track pollution prevention successes, as well as
minimize the ability to link pollution prevention opportunities for
facilities that no longer report.  The Minnesota Pollution Control
Agency wrote that this proposal would significantly weaken the quality
of our data for tracking, targeting, and providing technical pollution
prevention assistance. This assistance results in cost savings for
industry from reduced waste and expenses associated with managing
hazardous materials.

The North American Hazardous Materials Management Association
(“NAHMMA”) wrote that they are particularly concerned about the
damaging effects of this proposal on pollution prevention programs,
which are essential to make communities safer.  The proposed increase in
threshold would directly undercut and perhaps ruin state pollution
prevention programs.  It would make it harder to monitor and provide P2
assistance for currently covered chemicals that move from Form R
reporting to Form A certification.  State pollution prevention programs
would be more difficult to carry out when state and local governments
lose the ability to monitor entire facilities.  For example, the
facilities that move entirely to Form A certification may no longer be
covered under Washington’s Pollution Prevention Planning regulations. 
Some states would also lose funding for their pollution prevention
programs.  In Minnesota, TRI data is used in collecting revenue that
funds direct pollution prevention technical assistance to business and
industry. Minnesota’s pollution prevention fee is assessed to TRI
reporters based upon the number of Form Rs they submit and the number of
pounds of chemicals released and transferred offsite for treatment.  As
stated above, the proposal would considerably reduce the number of
facilities that submit Form R reports.  This, in turn, would cut revenue
available for pollution prevention technical assistance programs.  The
states of Colorado, Maine, Massachusetts and Mississippi have similar
mechanisms for funding pollution prevention technical assistance
programs.  NAHMMA believes that all of the chemicals currently required
to report under the Toxics Release Inventory are chemicals of sufficient
concern to justify excluding them from reporting on Form A. 

The US Conference of Mayors wrote that, through the Conference's
pollution prevention policy, numerous cities in all parts of the country
have implemented local pollution prevention planning programs, in which
local governments assist businesses in their efforts to reduce their
waste and emissions.  Oftentimes, the detailed reporting on Form R
triggers a city's outreach, pollution prevention, emergency response,
and waste management programs.  If a 5,000-pound threshold is enacted
for the use of Form A, city governments would lose information from
facilities that might have small, but more toxic releases.  This would
make it much harder to target programs to those facilities that pose the
greatest risk and who could benefit greatly.

Response:

In response to concerns about supporting pollution prevention, EPA has
decided to modify the proposed 5,000-pound ARA by placing a 2,000-pound
limit on releases of non-PBT chemicals being considered for Form A.  In
other words, based on this modification to the proposal, in order for a
facility to use the Form A Certification Statement for a non-PBT
chemical, the facility cannot have more than 5,000 pounds of total waste
management (i.e., releases, recycling, energy recovery, and treatment)
of that chemical, and the contribution of releases toward the
5,000-pound total waste management amount must be no greater than 2,000
pounds.  By placing a 2,000-pound limit on the amount of releases that
may be applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total release pounds that would no longer be
reported on Form R under the proposed rule at full utilization of Form A
and at the same time, this rule preserves almost 80% of the burden
reduction offered by the non-PBT portion of the proposed rule.  EPA
believes that this final rule approach to expanded Form A eligibility
for non-PBT chemicals strikes a better balance than the proposed rule
insofar as providing meaningful burden reduction while at the same time
ensuring that the intended purposes of the TRI data are satisfied.      


By limiting the release portion of the 5,000-pound ARA to 2,000 pounds,
EPA is structuring the Form A eligibility criteria in a way that
promotes treatment and recycling over releases.  Such a structure is
consistent with national policy on pollution prevention.  Section
6602(b) of the Pollution Prevention Act of 1990 reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

By raising the recycling, treatment, and energy recovery portions of the
ARA to a 5,000-pound maximum, while capping releases at 2,000 pounds,
EPA has built into the Form A eligibility criteria an incentive for
facilities to move away from disposal and other releases toward
treatment and recycling.  Further, by including all waste management
activities in the Form A eligibility criteria EPA is encouraging
facilities above the 5,000-pound ARA to reduce their total waste
management in order to qualify for Form A.  EPA believes that this
approach to expanded Form A eligibility for non-PBT chemicals balances
burden reduction against the need to provide information consistent with
the goals and statutory purposes of the TRI program and at the same
time, promotes pollution prevention and recycling and treatment over
releases.

EPA agrees with commenters that the proposed expansion of Form A
eligibility for non-PBT chemicals can impact risk rankings such as
county-level risk rankings generated by the Agency's Risk Screening
Environmental Indicators (RSEI) tool.  This is because RSEI does not
recognize Form A in determining the comparative risk of a chemical
release quantity because Form A does not provide specific quantitative
information.  EPA also notes, however, that while RSEI is a valuable
tool, it is a screening tool that makes assumptions about chemical
toxicity and exposure pathways that may not hold true at the local level
where a more robust risk assessment can be undertaken.  More information
on the functionality and limitations of RSEI can be found at:
http://www.epa.gov/oppt/rsei.

With regard to the impact on information about Hazardous Air Pollutants
(HAPs) recognized under the Clean Air Act, the Agency factored into its
decision-making that a significant percentage of the approximately
12,000 Form Rs estimated to be newly eligible for Form A under the
proposal would be comprised of HAP chemical reports.  In particular, EPA
estimates that 32 specific HAP chemicals identified by the Agency as
“priority urban air toxics” could account for as many as 2,600 of
the 12,000 Form As at issue under the proposal.  In other words, these
32 high-priority chemicals (approximately 5% of all the TRI listed
non-PBT chemicals) could account for about a quarter of all newly
eligible Form As.  Because of the 2,000-pound release cap fewer Form Rs
will be affected by the final rule as compared to the proposed rule.

For several reasons, in this final rule EPA has decided to include
section 8.8 quantities (i.e., quantities resulting from remedial
actions, catastrophic events, or one-time events not associated with
production processes) in the ARA threshold determination for non-PBT
Form A eligibility.

First, EPA agrees with many of the commenters that while section 8.8
releases and other waste management amounts are not the direct result of
production-related activities, and therefore, are less amenable to
source-reduction efforts, reporting on section 8.8 quantities provides
important information on releases and other waste-management amounts in
the same way reporting on production-related releases and other
waste-management amounts informs communities.

Second, the ARA for non-PBT chemicals should include section 8.8
waste-management information in order to create consistency between PBT
and non-PBT Form A eligibility.  In other words, including the
waste-management information of section 8.8 in the Form A threshold
determination for PBT chemicals, as proposed, and not in the ARA for
non-PBT chemicals will add unnecessary complications and complexities in
determining Form A eligibility.

Third, EPA does not expect the inclusion of section 8.8 quantities in
the Form A threshold determination for non-PBT chemicals to add a
significant amount of burden to those facilities considering Form A. 
Less than 4% of all non-PBT chemical Form Rs have a value greater than
zero in section 8.8.  Accordingly, section 8.8 quantities will not play
any role in most Form A eligibility determinations.  Further, because
section 8.8 is restricted to quantities involving remedial actions,
catastrophic events, or one-time events not associated with production
processes, EPA does not expect section 8.8 quantities to factor into any
facility's Form A eligibility determinations on a consistent, annual
basis.

With regard to commenter’s concerns about states losing funding for
their pollution prevention programs because of the proposed expanded
eligibility for Form A, EPA notes that the TRI program (EPCRA section
313) does not govern state fee programs.  States have the ability to
reassess how they collect fees to fund their pollution prevention
activities and other environmental programs. 

f. Smaller releases not necessarily less risk 

Summary of Comments (by Abt):

Eighteen unique submissions representing 22 commenters expressed general
opposition to the proposed option for non-PBT chemicals, because the
smaller releases that will not be reported do not necessarily pose less
risk than the larger releases that will continue to be reported.  Many
commenters wrote about the potential for multiple small emitters to be
concentrated in a community, resulting in a substantial cumulative risk,
which would not be reported.  The National Environmental Trust, and
others, wrote that EPA’s Risk Screening for Environmental Indicators
(RSEI) program is built in large part on the very premise that a small
amount of releases of a more toxic or hazardous chemical can be more
dangerous than a larger release of a less toxic substance.  Several
commenters said that the proposed rule is advocating a
‘one-size-fits-all’ approach that ignores the wide variability in
toxicity across TRI chemicals.  Any changes to the thresholds must take
these differences into account.

The Washington State Department of Ecology wrote that the department
emphasizes working with facilities based on the risk their wastes and
releases pose to the environment.  If a 5000-pound threshold is enacted
for the use of Form A, toxics reduction staff would lose information
from facilities that might have small, but more toxic, releases.  This
would make it much harder to target this program to those facilities
that pose the greatest risk and who could benefit greatly.

The New Jersey Department of Environmental Protection (“NJDEP”)
wrote that an analysis of the New Jersey Release and Pollution
Prevention Report (RPPR) data was conducted to identify facilities based
on relative risk.  This analysis was intended to identify facilities
that pose potential adverse public health impacts.  Two of the
facilities identified, Karnak Corporation, Clark, New Jersey and Gardner
Asphalt, Kearny, New Jersey both reported air releases of asbestos
between 2 and 2,540 pounds from 1993 to 2002.  The resulting
investigation revealed that even the 2 pounds of air releases resulted
in a significant potential risk to the surrounding community.  NJDEP was
successful in assisting these facilities in substituting cellulose for
over two million pounds of asbestos, resulting in reduced exposure of a
carcinogen to workers and the surrounding community.  And most
importantly, the asbestos is no longer in the consumer products.  Had
this proposal been in effect in 2002, the NJDEP, and more importantly,
the surrounding community, would not have been aware of this significant
health risk.

The Group Against Smog & Pollution, Inc wrote that one cannot safely say
that a TRI non-PBT chemical in amounts under 5000 pounds at a facility
or group of facilities in a neighborhood would have less than a one in a
million risk of public health injury since there is no real risk
assessment done.  In ranking companies by risk using the EPA Risk Screen
Indicators Model under the "Toxics Release Inventory Burden Reduction
Proposed Rule,” Washington state would lose data on eight of the top
forty facilities with the greatest relative risk.

Law Environmental, Inc. described an analysis also using EPA's RSEI
model, which found that many releases in Alabama under 5,000 pounds are
more hazardous to the public than higher-quantity releases.  For
example, the Meadowcraft, Inc. facility releases only 1,141 pounds of
toxic chemicals and would not, under the proposed rule, be required to
file a Form R.  Yet, its release is more toxic to more people than
Sanders Lead Co., Inc. which releases 11,316,725 pounds of toxic
chemicals and which would be required to file a Form R.  This example is
repeated many times in the Alabama data and surely is repeated many
times in the national data.  Relying solely on pounds of toxic chemicals
released or managed as a criterion for judging risk or public interest
is arbitrary.  Risk is a function of quantity, toxicity and exposure.

Response:

In response to concerns over the varying toxicity of TRI-listed non-PBT
chemicals and the potential risk that even small releases can pose, EPA
has decided to modify the release component of the proposed ARA by
limiting releases to 2,000 pounds.  Based on this modification to the
proposal, in order for a facility to use the Form A Certification
Statement for a non-PBT chemical, the facility cannot have more than
5,000 pounds of total waste management (i.e., releases, recycling,
energy recovery, and treatment) of that chemical, and the contribution
of releases toward the 5,000-pound total waste management amount must be
no greater than 2,000 pounds.  By placing a 2,000-pound limit on the
amount of releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden reduction while
at the same time ensuring that the intended purposes of the TRI data are
satisfied.      

The volume of release information that may no longer be reported on Form
R as a result of this final rule is expected to be much less than the
Form R release information at stake under the proposal.  Specifically,
EPA estimated that at full utilization of Form A, approximately 14
million pounds of release information would no longer be reported on
Form R as a result of the proposal.  As a result of this final rule,
however, EPA estimates the additional amount of release pounds that may
no longer be reported on Form R at full utilization of Form A to be
approximately 5.7 million pounds, which is approximately only 40% of the
release information at issue under the proposal.  

EPA further notes that while Form A does not provide the level of
detailed information provided by Form R, it does provide data users with
valuable information.  Under today’s rule Form A informs the public
that total releases is in the range of zero to 2,000 pounds and that
total waste management is in the range of zero to 5,000 pounds. 
Furthermore, TRI data users are currently able to access Form A facility
information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

Regarding the Agency's Risk Screening Environmental Indicators (RSEI)
model, EPA believes this risk-screening tool provides valuable
information.  EPA also agrees with commenters that the proposed
expansion of Form A eligibility for non-PBT chemicals can impact risk
rankings such as county-level risk rankings generated by the Agency's
Risk Screening Environmental Indicators (RSEI) tool.  This is because
RSEI does not recognize Form A in determining the comparative risk of a
chemical release quantity because Form A does not provide specific
quantitative information.  EPA also notes, however, that while RSEI is a
valuable tool, it is a screening tool that makes assumptions about
chemical toxicity and exposure pathways that may not hold true at the
local level where a more robust risk assessment can be undertaken.  More
information on the functionality and limitations of RSEI can be found
at: http://www.epa.gov/oppt/rsei.

iii. Lessens incentive for companies to improve environmental
performance 

Summary of Comments (by Abt):

Six commenters expressed general opposition to the proposed option for
non-PBT chemicals, because the proposal will lessen the incentives for
companies to improve their environmental performance.  Facilities will
be able to release up to ten times more chemicals without any reporting.
 One commenter wrote that it is outrageous that EPA would want to make
it easier for businesses to avoid public scrutiny of their releases.  It
has been unequivocally documented that having to publish releases has
shamed businesses into drastically reducing their output. 

The New York State Department of Environmental Conservation wrote that
EPA fails to describe how an increase in the annual reportable amount
will be a pollution prevention incentive.  Such a change is more likely
to be a pollution prevention disincentive.  For example, a facility may
have implemented measures to maintain an annual reportable amount of 500
pounds or less for a chemical and if the proposed rule is promulgated,
the facility may find the cost of such measures to be excessive and
abandon them resulting in increased releases of the chemical to various
media.

The South Carolina Department of Health & Environmental Control wrote
that with the application of the 5000-pound threshold for non-PBT
chemicals, 252 South Carolina facilities will no longer be inclined to
explore waste or release reduction for the 643 chemical reports exempted
from Form R.

Several State Attorneys General wrote that the proposed change would
also remove a powerful incentive to minimize the release of toxic
chemicals, as companies that previously kept their releases to less than
500 pounds to avoid detailed reporting could now release much greater
amounts without reporting those amounts.  EPA has not evaluated, but
should evaluate, the extent to which the proposed changes to the rule
will weaken incentives for companies to reduce releases and use of toxic
chemicals.  As noted in Part III.A [see comment in outline topic XII.6]
above, TRI reporting requirements have induced companies to reduce their
releases and use of toxic chemicals by billions of pounds, but the
proposed rule would weaken that incentive by allowing less reporting.
For example, companies that previously kept their non-PBT releases to
less than 500 pounds to avoid detailed reporting could now release up to
5000 pounds without reporting those amounts.

Response:

In response to concerns that the proposed rule would lessen the
incentives for companies to improve their environmental performance
especially because the proposal allows 5,000 pounds of releases to
qualify for Form A, EPA has decided to modify the proposal by limiting
releases to 2,000 pounds.  EPA believes that this modification to the
proposal will act as an incentive for pollution prevention and
improvements in environmental performance.

By limiting the release portion of the 5,000-pound ARA to 2,000 pounds,
EPA is structuring the Form A eligibility criteria in a way that
promotes treatment and recycling over releases.  Such a structure is
consistent with national policy on pollution prevention.  Section
6602(b) of the Pollution Prevention Act of 1990 reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

By raising the recycling, treatment, and energy recovery portions of the
ARA to a 5,000-pound maximum, EPA has built into the Form A eligibility
criteria an incentive for facilities to move away from disposal and
other releases toward treatment and recycling.  Further, by including
all waste management activities in the Form A eligibility criteria EPA
is encouraging facilities above the 5,000-pound ARA to reduce their
total waste management in order to qualify for Form A.

iv. Minimal burden reduction 

Summary of Comments (by Abt):

Three commenters expressed general opposition to the proposed option for
non-PBT chemicals.  The commenters wrote that the benefits to industry
would be small, and not worth the decrease in data available to the
public.  

The Natural Resources Defense Council wrote that current recordkeeping
requirements would remain unchanged under the proposed rule.  This is
necessary, since complete and accurate records are needed for facilities
to calculate their releases and determine their eligibility for Form A. 
However, this also limits the burden reduction that might be expected
from the rule change.  The expected cost savings projected by EPA (using
current methodology) for facilities that abandon Form R filings in favor
of Form A for non-PBT chemicals amount to $430 per form or $812 per
facility, on average. Such small cost savings do not justify the large
data losses that would be incurred. 

James Jeffords and five other US Senators wrote that EPA's proposal
would allow thousands of facilities to withhold details about pollution
volumes, waste management and treatment.  In addition, since facilities
under this proposal will still need to calculate the volume of their
toxic releases, it is unclear how allowing use of the shortened
reporting form will result in any meaningful cost savings.  

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, and WI wrote that EPA itself estimates that allowing use of Form A
would only save an estimated 9.6 hours per form. As noted elsewhere in
their comments [see comments in outline topics II.1.D, VIII.1, VIII.1.A,
VIII.1.C, and VIII.7.A], even this small amount of time is likely to be
an overestimate.

Response:

For all facilities taking advantage of Form A for a non-PBT chemical,
the Agency estimates the burden savings to be 9.1 hours for each Form A
completed in lieu of a Form R.  For a detailed breakdown of the savings
per Form R, readers should refer to the economic analysis accompanying
the rule.  While this burden savings may not represent a significant
savings for all facilities eligible for Form A under the proposal, EPA
disagrees with commenters that the proposed rule represents minimal
burden reduction for all sectors expected to qualify for Form A.  EPA
acknowledges that facilities with releases and other waste management
amounts well below the threshold for Form A may be spared the burden of
detailed calculations to determine eligibility for Form A.  EPA further
allows for the possibility that Form A may amount to significant burden
reduction for small facilities.

However, in addition to considering burden reduction, EPA has carefully
considered the concerns raised about the impact the proposal could have
on the utility of the data.  Commenters opposed to the proposed
5,000-pound ARA contend that it is at the local level that a 5,000-pound
Form A range of waste management information, and in particular, release
information, will adversely impact the ability to perform trend
analyses, monitor the performance of individual facilities, and more
generally, meet the intended purpose of the data collection to inform
the public, government, and other data users about releases of toxic
chemicals to the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  By placing a 2,000-pound limit on the amount of
releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden relief while at
the same time providing valuable information to the public consistent
with the goals and statutory purposes of the TRI program.

v. Sets a poor precedent 

Summary of Comments (by Abt):

Five unique submissions representing sixteen commenters expressed
general opposition to the proposed option for non-PBT chemicals, because
the rule may set a poor precedent for other US programs, or for other
countries.  One commenter wrote that the proposal generally sends the
message that EPA is willing to sacrifice the public health in order to
provide relief to companies with irresponsible waste management
practices.  The National Environmental Trust, New Hampshire chapter,
wrote that this proposal will likely influence policies for current and
future polluting industries in the wrong direction for protecting public
health.  The National Environmental Trust (national group) wrote that
the EPA Administrator also has signed at least two CEC [North American
Commission for Environmental Cooperation] resolutions promoting greater
data comparability among North American countries, so this proposal
represents a retreat from those formal commitments.

Response:

EPA has carefully considered commenters’ concerns that the proposed
rule would set a poor precedent for protecting public health, and would
sent the wrong message to other U.S. environmental programs,
international efforts promoting data comparability, and companies
looking to improve their environmental performance.  In response to
these concerns and other concerns raised in opposition to the proposal,
EPA has decided to modify the proposed 5,000-pound ARA by placing a
2,000-pound limit on releases of non-PBT chemicals being considered for
Form A.  By placing a 2,000-pound limit on the amount of releases that
may be applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total release pounds that would no longer be
reported on Form R under the proposed rule at full utilization of Form A
and at the same time, this rule preserves almost 80% of the burden
reduction offered by the non-PBT portion of the proposed rule.  EPA
believes that this final rule approach to expanded Form A eligibility
for non-PBT chemicals strikes a better balance than the proposed rule
insofar as providing meaningful burden relief while at the same time
providing valuable information to all TRI stakeholders.

vi. Smaller facilities are not as efficient in their waste
management/release a higher percentage of their PRW 

Summary of Comments (by Abt):

Nine commenters expressed general opposition to the proposed option for
non-PBT chemicals because proportionally more data from smaller
facilities may be lost, and smaller facilities are not as efficient in
waste management as larger facilities.  

Environmental Defense wrote that small facilities tend to have a
relatively high percent of production-related waste that is released to
the environment, suggesting that they are not doing enough to prevent
releases.  Moreover, small facilities often operate with little
oversight from environmental inspectors. Their only motivation for
pollution prevention may come from scrutiny of the local press and
community groups.  

Similarly, the National Environmental Trust (NET) wrote that there is
plenty of evidence showing that "small" facilities producing less than
5,000 pounds of production related waste do not necessarily operate
efficiently, and exempting these facilities will hinder efforts to
promote pollution prevention and could lead to non-reporting of
significant releases.  According to NET:

1) Small facilities tend to have a larger percentage of their
production-related waste as releases to the environment than larger
facilities.  Releases constitute 15% of production-related waste
nationwide.  However, releases constitute 80% of production-related
waste for facilities that would no longer report numerical data under
the certification statement proposal.  These facilities are not
practicing pollution prevention and are not even managing waste either
on- or off-site.  They clearly need more scrutiny, not less.

2) According to the North American Commission for Environmental
Cooperation (CEC), which analyzed data from TRI and its Canadian
counterpart, the annual reduction in releases to the environment is
entirely driven by large facilities, and masks continuous increases in
releases from smaller facilities.  Raising the certification statement
threshold will potentially allow for even greater increases that will
not have to be reported by facilities that are under the threshold,
particularly since the vast majority of their production-related waste
is released to the environment. 

Several state agencies and environmental groups also wrote to provide
statistics for their own states regarding the production-related
waste/total releases ratio for all facilities compared to that for small
facilities:

MN:  statewide: 7%, small facilities: 40%.

ME:  statewide: 8%, small facilities: 43%.

DE:  statewide: 11%, small facilities: 45%.

PA:  statewide: 10%, small facilities: 55%.

SD:  statewide: 51%, small facilities: 64%.

NH:  statewide: 23%, small facilities: 65%.

CA:  statewide: 10%, small facilities: 77%.

Response:

In response to concerns over the loss of detailed Form R information on
quantities released, and in particular, quantities released at smaller
facilities where releases may constitute a large portion of the
facility’s total waste management, EPA has decided to modify the
proposed 5,000-pound ARA by placing a 2,000-pound limit on releases of
non-PBT chemicals being considered for Form A.  In other words, based on
this modification to the proposal, in order for a facility to use the
Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.  EPA believes that this final
rule approach to expanded Form A eligibility for non-PBT chemicals
strikes a better balance than the proposed rule insofar as providing
meaningful burden reduction while at the same time ensuring that the
intended purposes of the TRI data are satisfied.      

Further, by limiting the release portion of the 5,000-pound ARA to 2,000
pounds, EPA is structuring the Form A eligibility criteria in a way that
promotes treatment and recycling over releases.  Such a structure is
consistent with national policy on pollution prevention.  Section
6602(b) of the Pollution Prevention Act of 1990 reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

By raising the recycling, treatment, and energy recovery portions of the
ARA to a 5,000-pound maximum, while capping releases at 2,000 pounds,
EPA has built into the Form A eligibility criteria an incentive for
facilities to move away from disposal and other releases toward
treatment and recycling.  Structuring the Form A eligibility criteria in
a way that promotes recycling and treatment over disposal and other
releases provides an incentive that addresses commenters' concerns about
smaller facilities with proportionally greater releases than larger
facilities.

vii. Other 

Summary of Comments (by Abt):

Three commenters expressed general opposition to the proposed option for
non-PBT chemicals for other reasons not specified above.

The New Jersey Department of Environmental Protection wrote that nearly
10 percent of the New Jersey facilities submitting a Form A for 2004
either used more than 1,000,000 pounds of the toxic substance or
generated more than 500 pounds of production-related waste of the toxic
substance and, therefore, should not have utilized the Form A.  New
Jersey works very closely with USEPA's Region 2 office to uncover and
correct these areas of non-compliance.  The proposal would roll back
those efforts, and accept many of those abuses of Form A.  [For details,
see p. 9, Document ID 2235.2]

The National Environmental Trust wrote that the potential loss of data
described above is particularly distressing since the Agency has
resisted attempts to raise the quality of Section 8 data used to
calculate production-related waste, both with simple quality control
checks and providing definitions for reporting elements.  Not only are
there significant discrepancies between Section 8 and Sections 5 and 6
on individual forms - often reporting zero on the relevant lines of
Section 8 when there are appropriate data reported in the other sections
- but the on-site waste management terms used in Section 8 are
undefined.  This leads to substantial changes in Section 8 quantities
from year to year, particularly for on-site recycling.  It is all too
easy for a facility to consider on-site recycling as "integral to and
necessary for" the process as stated in the Pollution Prevention Act,
even if there is no "hard-piped" recycling going on and consequently
report no on-site recycling.  On principle, EPA should not even be
considering raising the certification statement threshold until it fixes
the Section 8 data quality problems. 

Another commenter wrote that this proposal will create an incentive for
companies to scatter small facilities that release 4,999 lbs/year.

Response:

Based on a range of concerns raised about the potential loss of detailed
Form R information on waste management and in particular, detailed
information about releases, EPA has decided to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By limiting the release portion
of the 5,000-pound ARA to 2,000 pounds, EPA is structuring the Form A
eligibility criteria in a way that promotes treatment and recycling over
releases, an approach that is consistent with national policy as
provided for by the Pollution Prevention Act.  

EPA understands commenters' concerns about data quality and
inconsistencies in defining specific waste management activities such as
"recycling."  To date, EPA has provided various forms of compliance
assistance (e.g., guidance, training sessions, a call center, a TRI
website, reporting software) to improve data quality and to promote
consistent TRI reporting.  Recognizing that there still is room for
improvement, the Agency intends to continue its outreach efforts to
improve reporting compliance.  Nevertheless, EPA believes that this
final rule's approach to expanded Form A eligibility for non-PBT
chemicals appropriately balances meaningful burden relief against the
requirement to provide the public and other data users with information
that is consistent with the goals and statutory purposes of the TRI
program.

i. Approach to defining Annual Reportable Amount (ARA) 

Summary of Comments:

The commenter is in favor of changing the definition of "annual
reportable amount" to exclude materials that are reclaimed and recycled.
 The commenter contends that such an approach would provide an incentive
for pollution prevention activities.

Response:

EPA disagrees with the commenter that recycling and waste management
activities other than releases should be excluded from the ARA threshold
for Form A eligibility.  Contrary to the commenter's assertion, EPA
believes that by including recycling, treatment, and energy recovery as
well as releases in the 5,000-pound ARA, EPA is promoting pollution
prevention. 

First, by limiting the release portion of the 5,000-pound ARA to 2,000
pounds, EPA is structuring the Form A eligibility criteria in a way that
promotes treatment and recycling over releases.  Such a structure is
consistent with national policy on pollution prevention.  Section
6602(b) of the Pollution Prevention Act of 1990 reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

Second, by including all waste management activities in the Form A
eligibility criteria EPA is encouraging facilities above the 5,000-pound
ARA to reduce their total waste management in order to qualify for Form
A.  If the Agency were to completely remove recycling, treatment, and
energy recovery activities from the ARA determination, as the commenter
advocates, EPA would be structuring Form A eligibility in a way that
lacks the incentive for facilities to engage in source reduction. 
Instead, for Form A eligibility facilities would only need to convert
release quantities above the Form A eligibility threshold to some other
waste management activity such as recycling and not reduce waste
altogether.  National policy states that pollution should be prevented
or reduced at the source whenever feasible.  Accordingly, the Agency has
decided to include all waste management activities under the Form A
threshold determination in order to ensure that Form A promotes source
reduction.

a. ARA should be modified to include Section 8.8 

Summary of Comments (by Abt):

Nine commenters wrote that the ARA should be modified to include Section
8.8.  Several commenters wrote that one-time or periodic activities, or
accidental releases, can result in substantial releases to the
environment.  Although the section 8.8 release amounts are not direct
results of production activities, these releases are still generated as
a result of the facility doing business manufacturing, processing or
otherwise using the TRI-listed chemical, and so should be included in
the ARA.  The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH,
NJ, NM, VT, and WI wrote that including Section 8.8 in the ARA (for all
non-production related releases of any sort) would be a good idea even
if the proposed rule is rejected.  

Environmental Integrity wrote that a review of online data from the
Texas Commission on Environmental Quality shows that petrochemical
plants and other manufacturers frequently release large amounts of
pollution when equipment malfunctions, and that these accidental
emissions can sometimes be greater than emissions from routine
operations.  The proposed exclusion could encourage companies to
reclassify accidental releases as "catastrophic" to take advantage of
the exemption and avoid having to file TRI Form R reports.  A
catastrophic release may result from negligence or the failure to invest
in the necessary pollution control equipment.  The TRI is one of the
primary sources of public information for those who want to track
environmental performance, and it is inappropriate to exclude data that
may reflect poor management practices.  EPA has offered no justification
for this exclusion.  If catastrophic events are rare, as EPA may be
assuming, then shielding them from disclosure would not yield any
appreciable reduction in paperwork, which is EPA's main justification
for its proposal.  If they are frequent or significant, however, then
there is really no rationale for excluding them from disclosure under
Form R.

American Petroleum Institute API wrote to support EPA modifying the ARA
(for non-PBTs) to include Section 8.8 management information.  Including
the management information of Section 8.8 in the ARA for PBT chemicals
and not in the ARA for non-PBT chemicals will add unnecessary
complications and complexities in determining Form A eligibility.

Commenters supplied the following examples of releases that would not
have been reported under the proposed threshold if Section 8.8 is
excluded from the ARA:

-according to the 2003 TRI data, 124 facilities would not have to report
non-production releases of 1,000 pounds or more; for 10 of those
facilities, the amount is more than 100,000 pounds. 

-the Union Carbide release in Bhopal- if it were located in the US and
the rest of its activities were small enough to meet the 5,000-pound
Form A threshold it wouldn’t have had to report its 40-ton release.

- Conoco-Phillips reported catastrophic releases of 8,000 pounds of
trimethylbenzene in 1998, and more than 5,000 pounds of dichloroethane
in 2000 at its refinery in Lake Charles, Louisiana, and 36,600 pounds of
hydrochloric acid from its refinery in Borger, Texas in 2000.

-the Timken Sandy Creek Distribution Center's non-production release of
292,420 pounds of manganese.

-the Ellwood National Forge's non-production release of 176,700 pounds
of ammonia.

-Penn Color's non-production release of 40,498 pounds of several
different chemicals.

Response:

For several reasons, in this final rule EPA has decided to include
section 8.8 quantities (i.e., quantities resulting from remedial
actions, catastrophic events, or one-time events not associated with
production processes) in the ARA threshold determination for non-PBT
Form A eligibility.

First, EPA agrees with many of the commenters that while section 8.8
releases and other waste-management amounts are not the direct result of
production-related activities, and therefore, are less amenable to
source-reduction efforts, reporting on section 8.8 quantities provides
important information on releases and other waste-management amounts in
the same way reporting on production-related releases and other
waste-management amounts informs communities.

Second, EPA agrees with the American Petroleum Institute (API) that the
ARA for non-PBT chemicals should include section 8.8-waste-management
information in order to create consistency between PBT and non-PBT Form
A eligibility.  In other words, including the waste-management
information of section 8.8 in the Form A threshold determination for PBT
chemicals, as proposed, and not in the ARA for non-PBT chemicals will
add unnecessary complications and complexities in determining Form A
eligibility.

Third, EPA does not expect the inclusion of section 8.8 quantities in
the Form A threshold determination for non-PBT chemicals to add a
significant amount of burden to those facilities considering Form A. 
Less than 4% of all non-PBT chemical Form Rs have a value greater than
zero in section 8.8.  Accordingly, section 8.8 quantities will not play
any role in most Form A eligibility determinations.  Further, because
section 8.8 is restricted to quantities involving remedial actions,
catastrophic events, or one-time events not associated with production
processes, EPA does not expect section 8.8 quantities to factor into any
facility's Form A eligibility determinations on a consistent, annual
basis.

b. Waste management activities should not be counted towards the ARA 

Summary of Comments (by Abt):

Five commenters stated that waste management activities should not be
counted towards the ARA.  Several commenters said that the original
Congressional intent for TRI was to provide communities with information
on toxic releases, and the inclusion of recycling data in TRI reporting
was added only later under the Pollution Prevention Act.  While the
collection of waste management data may be informative, including it in
the ARA, which was not required under the PPA, has had the negative
effect of punishing facilities that recycle by not allowing them to take
advantage of Form A burden reductions.  Changing the definition of
"annual reportable amount" to exclude materials that are reclaimed and
recycled would provide incentive for pollution prevention activities. 
The Consumer Specialty Products Association wrote that EPA should
ideally exclude amounts recycled and consumed for energy recovery - data
elements 8.2 through 8.5 - from calculation of the ARA, but at the
least, those quantities recycled or consumed for energy onsite - 8.2 and
8.4 - should be excluded.

NCASI wrote that, although not mentioned for non-PBTs in the proposal,
basing Form A eligibility solely on the total amount of a substance
released to the environment would be a more effective and
straight-forward burden-reducing option.  If this total were less than
some specified value, then there would be no need to estimate off-site
transfers and the amounts treated, used for energy recovery and
recycled.  Setting the cutoff value for total releases at 5000 pounds
would be an obvious choice, since it is currently commonly assumed by
TRI users that a facility submitting a Form A is releasing up to the
present threshold amount (500 pounds) to the environment, even though
the 500-pound threshold amount includes more than just releases.

Response:

EPA disagrees with commenters that the ARA criterion should reflect only
reported releases to the environment and not waste management activities
such as recycling and energy recovery.  EPA does not agree with these
commenters that by including waste management activities other than
releases in the ARA, Form A punishes facilities engaged in such
activities or in any way discourages pollution prevention.  Contrary to
these commenters' assertions, EPA believes that by including recycling,
treatment, and energy recovery as well as releases in the 5,000-pound
ARA, EPA is promoting pollution prevention. 

First, by limiting the release portion of the 5,000-pound ARA to 2,000
pounds, EPA is structuring the Form A eligibility criteria in a way that
promotes treatment and recycling over releases.  Such a structure is
consistent with national policy on pollution prevention.  Section
6602(b) of the Pollution Prevention Act of 1990 reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

Second, by including all waste management activities in the Form A
eligibility criteria EPA is encouraging facilities above the 5,000-pound
ARA to reduce their total waste management in order to qualify for Form
A.  If the Agency were to completely remove recycling, treatment, and
energy recovery activities from the ARA determination, as some
commenters advocate, EPA would be structuring Form A eligibility in a
way that lacks the incentive for facilities to engage in source
reduction.  Instead, for Form A eligibility facilities would only need
to convert release quantities above the Form A eligibility threshold to
some other waste management activity such as recycling and not reduce
waste altogether.  National policy states that pollution should be
prevented or reduced at the source whenever feasible.  Accordingly, the
Agency has decided to include all waste management activities under the
Form A threshold determination in order to ensure that Form A promotes
source reduction.

ii. Comments on threshold 

Summary of Comments (by Abt):

Eleven unique comments representing fifteen commenters had comments on
revising the non-PBT threshold.  Several commenters (American Petroleum
Institute, The American Public Power Association, the Small Business
Administration) wrote in support of the proposed 5,000-pound threshold,
as providing substantial burden reduction with a minimal loss of
information.  

Other commenters opposed the 5,000-pound proposed threshold because of
the loss of data at the local and state level, and the large, ten-fold
increase in the threshold.  Many commenters also opposed the proposal,
claiming it was arbitrary in nature.  The Waterkeeper Alliance wrote
that nowhere in the proposed rule does EPA even attempt to explain how
it arrived at a triggering threshold which is 10 times that of the
current level. EPA's utter failure to explain its rationale violates the
imperative that it properly and adequately set forth the reasons for its
actions.  See, Motor Vehicle Mfs. Assn. of the United States, Inc. v.
State Farm Mutual Auto Ins. Co., 463 US 29, 48-50 (1983); Appalachian
Power Co. v. United States Environmental Protection Agency, 135 F.3d
791, 818 (D.C. Cir. 1998).  The National Environmental Trust wrote that
EPA has given no justification for selecting a 5,000-pound threshold for
certification (or the 1,000 or 2,000 pound level included in the request
for comments).  The original 500-pound certification threshold was
devised in part to reward facility efficiency.  If EPA has decided that
ten times more production-related waste is acceptable in terms of
facility operation efficiency, the Agency should be clear about it and
say so.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, and WI wrote that the alternative reporting thresholds, or indeed
any reporting thresholds greater than the current one, are unlawful and
bad policy for the same reasons as the 5,000-pound threshold.  As Table
3 demonstrates, either of these alternative thresholds would create
numerous chemicals for which the substantial majority standard would not
be met given the minimal reasonable definition of the term. [see Table 3
data in Document ID 4553, p.36.]   In addition, the proposed alternative
ARA thresholds also violate the substantial majority standard, and there
is no statutorily-recognized reason to reduce reporting on these
chemicals.

OMB Watch wrote that it finds EPA's proposal to raise the TRI reporting
threshold for non-PBT chemicals from 500 to 5,000 pounds to be excessive
and overly drastic. The ability to file a simple certification form for
releases and disposals under 500 pounds was a controversial issue when
it was established by EPA in 1994.  Since the certification form was
implemented, EPA has considered the possibility of raising the threshold
several times.  However, each time the agency rejected these options and
left the 500-pound threshold in place.  To leap forward and propose a
10-fold increase in the threshold without any new research or analysis
to suggest that the impacts have changed is unwarranted and contradicts
EPA's previous determinations.  OMB Watch believes that any change in
reporting threshold, if done at all, should be done in smaller
increments to minimize the risk of unforeseen consequences.  For
instance, it would have been more reasonable for EPA to consider
doubling the threshold to 1,000 pounds.  If after implementation of the
new threshold, the agency determined that the change did not have an
adverse impact on health or data use, the agency could consider another
moderate increase.

Response:

In response to concerns about the loss of detailed Form R waste
management information and in particular, the loss of detailed
information on quantities released, EPA has decided to modify the
proposed 5,000-pound ARA by placing a 2,000-pound limit on releases of
non-PBT chemicals being considered for Form A.  In other words, based on
this modification to the proposal, in order for a facility to use the
Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.  EPA believes that this final
rule approach to expanded Form A eligibility for non-PBT chemicals
strikes a better balance than the proposed rule insofar as providing
meaningful burden reduction while at the same time ensuring that the
intended purposes of the TRI data are satisfied.       

This final rule is consistent with the authority given to EPA by EPCRA
section 313(f)(2).  As discussed in the preamble to the proposed rule,
EPCRA allows EPA to adjust the reporting thresholds so long as the
adjusted thresholds "obtain reporting on a substantial majority of total
releases of the chemical at all facilities subject to the requirements
of this section."  Under this rule, Form A eligibility is being extended
to facilities reporting on non-PBT chemicals with Annual Reportable
Amounts (ARAs) not exceeding 5,000 pounds and release amounts
contributing no more than 2,000 pounds toward the 5,000-pound ARA. 
Under this rule, each Form A continues to serve as a range report,
informing the public that total releases is in the range of zero to
2,000 pounds and that total waste management (which includes releases)
is in the range of zero to 5,000 pounds.

Additionally, as discussed in the preamble to the proposed rule, for
today's action the Agency has considered existing Form A utilization. 
Specifically, the Agency observed that only slightly over half of the
forms (54%) potentially eligible for Form A use take advantage of that
option.  The Agency believes there are a number of potential reasons for
this utilization rate, including the desire to showcase
pollution-prevention efforts on Form R and the desire to demonstrate
good environmental stewardship.  Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization is likely to be
significantly higher at a 5,000-pound ARA with a 2,000-pound release
limit than it has been to date at the 500-pound ARA threshold.

Further, by retaining the proposed 5,000-pound ARA and limiting releases
under the ARA to 2,000 pounds, EPA is structuring the Form A eligibility
criteria in a way that promotes treatment and recycling over releases. 
Such a structure is consistent with national policy on pollution
prevention.  Section 6602(b) of the Pollution Prevention Act of 1990
reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

EPA believes that an ARA of 5,000 pounds coupled with a 2,000-pound
release limit is an eligibility structure that encourages facilities to
move up the waste management hierarchy described in the Pollution
Prevention Act.  Therefore, with respect to the waste management
hierarchy, the final rule’s approach to Form A eligibility has an
advantage over the proposed rule’s ARA which failed to distinguish
between releases and the other waste management activities of recycling,
treatment, and energy recovery.

iii. Comments on specific non-PBT chemicals

Summary of Comments (by Abt):

Edison Electric Institute (EEI) wrote that EPA has also requested
comment on whether any non-PBT chemical poses such a degree of concern
that it should be excluded from Form A reporting.  EEI does not believe
that any chemical (whether PBT or non-PBT) should be automatically
excluded from Form A reporting eligibility.

Response:

Despite varying toxicity among the more than 600 non-PBT chemicals
subject to TRI reporting, EPA has decided to allow Form A to be
considered for all TRI-listed non-PBT chemicals.  EPA recognizes that
the TRI-listed non-PBT chemicals include a wide range of chemicals with
varying toxicities and varying chemical characteristics.  This
recognition as well as all of the concerns raised about the loss of
detailed TRI waste management information under the proposed rule, and
in particular, the impacts from the loss of detailed Form R information
on releases at the local level, have led EPA to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By placing a 2,000-pound limit
on the amount of releases that may be applied to the 5,000-pound ARA for
Form A eligibility, this rule preserves almost 60% of the total release
pounds that would no longer be reported on Form R under the proposed
rule at full utilization of Form A and at the same time, this rule
preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.  EPA believes that this approach to
expanded Form A eligibility for non-PBT chemicals appropriately balances
meaningful burden relief from one Form A eligibility threshold for all
non-PBT chemicals against the requirement to provide the public and
other data users with information that is consistent with the goals and
statutory purposes of the TRI program.

Furthermore, Form A provides important information.  Under this rule,
each Form A continues to serve as a range report, informing the public
that total releases is in the range of zero to 2,000 pounds and that
total waste management (which includes releases) is in the range of zero
to 5,000 pounds.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

a. Specific non-PBT chemicals should be excluded from Form A eligibility
under new ARA or have a revised threshold 

Summary of Comments (by Abt):

Four commenters wrote regarding excluding specific non-PBT chemicals
from Form A eligibility or revising their thresholds.  American
Petroleum Institute wrote that there are no TRI chemicals of sufficient
concern (except dioxin and dioxin-like compounds) to not be eligible for
the proposed Form eligibility.  One commenter (a medical doctor) wrote
that certain pollutants should have lower thresholds (for instance,
hexavalent chromium) and provision should be made in the rule to allow
lower thresholds as new information about toxicity and fate and
transport comes to light.  The American Public Health Association and
Children's Environmental Health Network wrote that all PBTs should be
excluded, as well as any chemical whose basic human developmental
effects information, especially neurodevelopmental information, is not
public.

OMB Watch wrote that EPA has a responsibility to use its resources to
ensure that policy changes that could affect public health are
sufficiently reviewed and determined to be safe.  Raising the reporting
threshold from 500 to 5,000 pounds is a policy that merits such a health
review.  Many of the chemicals the TRI program tracks are carcinogens,
or cause developmental, reproductive, liver, kidney, gastrointestinal,
neurological, hematological, cardiological, immunological, respiratory,
and other effects.  OMB Watch considers it unlikely that all of the
chemicals tracked under TRI would be below a level of concern for public
health when considering releases to the air and water of just below
5,000 pounds, which would be possible under the proposed change. 
Indeed, OMB Watch believes the 5,000-pound threshold for detailed
reporting is an irresponsible and unhealthy level for most if not all
the chemicals tracked under TRI.  We demand that EPA commit to only
raising the Form A reporting eligibility thresholds to a level at which
the chemicals would not pose a significant health risk to nearby
communities. Once a facility begins releasing and disposing of chemicals
at a level that poses a credible health risk to local communities, those
communities have a right to know about the toxic pollution.  EPA's lack
of any analysis on the possible health implications of the reporting
threshold changes should be sufficient reason for the agency to withdraw
this proposed rule.

Response:

Despite varying toxicity among the more than 600 non-PBT chemicals
subject to TRI reporting, EPA has decided to allow Form A to be
considered for all TRI-listed non-PBT chemicals.  EPA recognizes that
the TRI-listed non-PBT chemicals include a wide range of chemicals with
varying toxicities and varying chemical characteristics.  This
recognition as well as all of the concerns raised about the loss of
detailed TRI waste management information under the proposed rule, and
in particular, the impacts from the loss of detailed Form R information
on releases at the local level, have led EPA to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By placing a 2,000-pound limit
on the amount of releases that may be applied to the 5,000-pound ARA for
Form A eligibility, this rule preserves almost 60% of the total release
pounds that would no longer be reported on Form R under the proposed
rule at full utilization of Form A and at the same time, this rule
preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.  EPA believes that this approach to
expanded Form A eligibility for non-PBT chemicals appropriately balances
meaningful burden relief from one Form A eligibility threshold for all
non-PBT chemicals against the requirement to provide the public and
other data users with information that is consistent with the goals and
statutory purposes of the TRI program.

Furthermore, Form A provides important information.  Under this rule,
each Form A continues to serve as a range report, informing the public
that total releases is in the range of zero to 2,000 pounds and that
total waste management (which includes releases) is in the range of zero
to 5,000 pounds.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities. 
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.  

(1) Hazardous Air Pollutants (HAPs) 

Summary of Comments (by Abt):

Nine commenters wrote specifically about excluding Hazardous Air
Pollutants (HAPs) from Form A eligibility.  All of the commenters
expressed concern about losing important data on HAPs, and the impact of
the loss on air quality modeling and the ability to regulate them - even
releases of under 5,000 pounds may have a significant impact.  The
National Environmental Trust (and local branches) wrote that EPA's
documentation for this proposal does not indicate that the Agency has
considered the impact of collecting less data on releases of HAPs on the
Agency's ability to track and potentially regulate those chemicals. 
Nationally, 28% of Form Rs for HAPs would be eligible for Form A.  In
NH, 28% of Form Rs would be eligible; for SD,18.1%; for CA, 35.7%; for
ME, 28%; and for MN, 20%.

OMB Watch wrote that EPA's Air Toxics site lists the TRI program as the
only other means for citizens to get information on HAPs in their
communities.  According to OMB Watch, it is clearly the superior source
of information as well, being much more extensive and more current.  It
seems unlikely that chemicals with such serious health effects could be
considered safe when emitted at levels approaching 5,000 pounds.  As an
example, OMB discussed benzene, a HAP and a TRI-reported chemical. 
Benzene is a known human carcinogen, and can cause various disorders in
the blood, including reduced numbers of red blood cells, aplastic
anemia, excessive bleeding, and damage to the immune system.
Reproductive effects have also been reported.  Based on this toxicology
data, OMB Watch believes that 5,000 pounds of benzene emissions could be
a significant health risk to workers and local residents, and EPA should
determine whether this actually is a health risk.  EPA's analysis of
raising the reporting threshold to 5,000 pounds reveals that 246,092
pounds of benzene releases would go unreported, and 393,790 pounds of
production-related benzene waste would also go unreported.  It is EPA's
responsibility to conduct an analysis of the health effects before
formally advancing a proposal and assure the public that the changes are
safe rather than placing the burden of proof on the public to establish
that a health concern exists.

Response:

EPA recognizes the importance of detailed release information about
Hazardous Air Pollutants (HAPs) regulated under the Clean Air Act. 
Specifically, upon further analysis, the Agency anticipated that a
significant percentage of the approximately 12,000 Form Rs estimated to
be newly eligible for Form A under the proposal would have been
comprised of HAP chemical reports.  In particular, EPA estimated that 32
specific HAP chemicals identified by the Agency as “priority urban air
toxics” could have accounted for as many as 2,600 of the 12,000 Forms
at issue under the proposal.  In other words, these 32 high priority
chemicals (approximately 5% of all the TRI listed non-PBT chemicals)
could have accounted for almost a quarter of all newly eligible Form As.
 Based on this concern as well as other concerns over the loss of
detailed release information, EPA has decided to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By placing a 2,000-pound limit
on the amount of releases that may be applied to the 5,000-pound ARA for
Form A eligibility, this rule preserves almost 60% of the total release
pounds that would no longer be reported on Form R under the proposed
rule at full utilization of Form A and at the same time, this rule
preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.  EPA believes that this approach to
expanded Form A eligibility for non-PBT chemicals appropriately balances
meaningful burden relief from one Form A eligibility threshold for all
non-PBT chemicals against the requirement to provide the public and
other data users with information that is consistent with the goals and
statutory purposes of the TRI program.

(2) Carcinogens 

Summary of Comments (by Abt):

Three commenters wrote specifically about excluding carcinogens from
eligibility for Form A.  Environmental Integrity wrote that it is not
clear why EPA would establish a higher threshold for exemption of human
carcinogens than it is prepared to accept for PBTs, and it will owe the
public an explanation of this distinction in its final proposal.  The
Ohio Environmental Protection Agency wrote that EPA should consider
establishing lower Form A eligibility levels for chemicals which can
cause serious health effects, such as carcinogens.  Carcinogens are
already noted in the TRl list of reportable chemicals as having a lower
de minimis level.

The New Jersey Department of Environmental Protection wrote that if the
proposed 5,000-pound threshold were in effect for the last 10 years
(1995 - 2004), detailed release and waste management data (nonproduct
output or NPO) of more than one million pounds of cancer-causing
compounds would not have been revealed (excluding lead).  Details such
as the following would not have been available to the public:

21,000 pounds of production-related waste (NPO) for the carcinogen
arsenic, among others, would not have been reported.  This would mean
that all arsenic data would be lost.

122,465 pounds of styrene production-related waste would not be
available and nearly 175,000 pounds of chromium (in compounds)
production-related waste would not be available.

[For details, see text and tables on p. 3-6, Document ID 2235.2]

Response:

Despite varying toxicity among the more than 600 non-PBT chemicals
subject to TRI reporting, EPA has decided to allow Form A to be
considered for all TRI-listed non-PBT chemicals.  EPA recognizes that
the TRI-listed non-PBT chemicals include a wide range of chemicals with
varying toxicities and varying chemical characteristics.  This
recognition as well as all of the concerns raised about the loss of
detailed TRI waste management information under the proposed rule, and
in particular, the impacts from the loss of detailed Form R information
on releases at the local level, have led EPA to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By placing a 2,000-pound limit
on the amount of releases that may be applied to the 5,000-pound ARA for
Form A eligibility, this rule preserves almost 60% of the total release
pounds that would no longer be reported on Form R under the proposed
rule at full utilization of Form A and at the same time, this rule
preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.  EPA believes that this approach to
expanded Form A eligibility for non-PBT chemicals appropriately balances
meaningful burden relief from one Form A eligibility threshold for all
non-PBT chemicals against the requirement to provide the public and
other data users with information that is consistent with the goals and
statutory purposes of the TRI program.

NOTICE OF INTENT TO PURSUE REPORTING FREQUENCY MODIFICATIONS

Response to all comments on this issue:

As discussed in the preamble to the final rule, in a separate notice
issued on October 4, 2005, the same day the Phase 2 Proposed Rule was
published in the Federal Register, EPA announced its intent to explore
potential approaches for modifying the reporting frequency of facilities
that report to TRI.  70  FR  57871.  EPA has notified Congress, as
required by section 313(i)(5), of its intent to initiate a rulemaking to
modify TRI reporting frequency.  42 U.S.C. § 11023(i)(5).  This
statutory provision requires one-year advance notification to Congress
before initiating such a rulemaking.  Despite the requirement of
one-year advance notice before initiating a rulemaking as well as the
issuance of a separate, albeit concurrent, Federal Register notice, many
commenters who responded to the proposed rule to expand Form A
eligibility also voiced support or opposition to any modification to the
TRI reporting frequency.  While EPA has preserved the comments submitted
on TRI reporting frequency, these comments are outside the scope of the
rulemaking to expand Form A eligibility and therefore EPA has not
responded to them as part of this rule.  With regard to TRI reporting
frequency, the Agency has decided not to pursue any changes in the TRI
reporting frequency at this time.  While EPA does not intend to take any
further actions concerning the TRI reporting frequency, EPA will adhere
to the process outlined in 42 U.S.C. 11023(i)(5) and provide 12 months
advance notice to Congress if the Agency decides in the future to
initiate changes to the TRI reporting frequency.

					

BURDEN ESTIMATION METHODOLOGY

Comments submitted on burden estimation methodology (by Abt):

1. Comments on the methodology used in the engineering estimates (by
Abt):

EPA did not measure the actual time the tasks take for actual people in
actual industries. Nor, in this analysis, does EPA report that it asked
TRI reporters how much time the tasks took them.  No effort seems to
have been made to determine whether EPA's time estimates are
representative of time actually needed on the average among
TRI-reporting industries as a whole.  And no effort seems to have been
made to determine whether time needed for particular tasks might vary
according to industry category.  There is, in fact, no real explanation
in the supporting materials in EPA's docket of how the estimates were
derived.  Without an understanding of this, there can be no meaningful
assertion by EPA that they are accurate.

A. Burden should be estimated using survey data (by Abt):

A new, statistically robust burden survey is warranted to produce a
reliable and accurate estimate of TRI reporting burden under the current
regulations and using current reporting tools (i.e., TRIME). [For
details, see p. 2,12; Document ID 1961]

EPA's proposal to reduce the burden to industrial facilities of
compiling and reporting TRI data is compelling.  To the extent that most
facilities do indeed face a burden in complying with TRI requirements
for data submission, reducing unnecessary costs to industry should be
considered seriously.  A first step would be to consider empirical
evidence of the existence and magnitude of any burden related to data
collection and reporting beyond that provided by EPA's meetings with
stakeholders.  That burden would be measured most directly by the time
and other costs for facility personnel to measure or estimate releases
of listed chemicals, and to report the data to EPA and other parties,
including duplicate efforts where states require a similar kind of
reporting.

First, OMB Watch questions the calculations of overall burden for
reporting TRI information used by EPA in the proposed rule.  The numbers
used are the third or forth set of burden estimates that EPA has
referenced over the past few years.  It is unclear why these numbers are
accurate, and, furthermore, it is unclear why previous burden estimates
EPA has generated are not used.  In EPA's 2003 Information Collection
Requests (ICR) for the Form R and Form A, EPA significantly revised the
burden estimates for reporting TRI downward, based on the actual
reporting times reported by companies.  The 2003 ICR notice for Form R
includes several reasons for dramatically reducing the burden estimate
including a drop in the burden for calculating and reporting from 47.1
to 14.5 burden hours.  Overall, the ICR made adjustments that decreased
the total burden about 2.68 million hours.  These lower burden numbers
indicate that there is no undue reporting burden on companies and would
provide less reason for pursuing burden reduction rulemaking.  However,
in the proposed rule, EPA appears to be using numbers which are closer
to the older, inflated numbers.  The proposed rule claims the baseline
burden for Form R is 47.1 hours for PBTs and 25.2 hours for non-PBTs. 
Both figures are much higher than the estimates from the 2003 ICR, which
were based on "actual TRI reporting facilities." ... Additionally, the
burden reduction depends greatly upon the baseline burden.  If the
baseline burden used in the proposed rule is inflated, as OMB Watch
believes it is, then the agency may list an inflated reduction of burden
as a benefit of the proposed rule.  However, this “benefit” would
never be realized if the burden-revised figures from the 2003
Information Collection Request, which appears to be the more correct
analysis of burden, are used.  If the more-accurate 2003 ICR numbers
replace the inflated numbers EPA used in the analysis it has prepared to
justify the proposals, then the burden reduction is much less than what
EPA purports.

2. Comments on the reasonableness and accuracy of the July, 2004
engineering estimates (by Abt):

The disparity between burden estimates presented in the proposed rule
indicates an inadequate understanding of the true burden associated with
TRI reporting.  Without an adequate understanding of the true burden,
attempts to quantify burden reductions are very questionable.  Results
from EPA's alternate methodology proposed in the rule for calculating
the form completion burden vary significantly from previous estimates.
... The new engineering estimates are notably different from current
calculation results, so we do not know what the true burden or burden
reduction is, if any. [For details, see p. 2, Document ID 1569]

EEI has reviewed the Abt Associates report, which estimates the time
needed to complete a Form R report, and believes that the Abt report
presents only a best case estimate of the time needed to complete a Form
R.  For many power plants, the actual time needed to complete a Form R
can be much longer than those estimated by Abt Associates.  First, the
Abt estimates assume a “typical” facility where there are no
significant changes in a facility’s operations or waste management
practices from one year to the next.  Many coal-fired power plants do
not fit this definition. ... The time needed to collect the appropriate
information and to make the calculations is far greater than the time
estimated by Abt.  In addition, waste management practices can change
from one year to the next at coal-fired power plants.  These changes
require time to analyze and estimate releases to the various media. ...
The time estimates in the Abt report also rely heavily on a plant using
the same methodologies and calculations as the previous year and on
having persons with detailed knowledge and experience with EPA’s TRI
requirements available to prepare the reports.  These assumptions are
optimistic and, as a result, produce time estimates that are too short.
... For all these reasons, EEI believes that implementation of the
proposed revisions to Form A reporting would have an even greater
economic benefit than EPA has estimated. [For details, see p. 4-5,
Document ID 2720]

EPA asks for comment regarding the alternate burden estimation
methodology that it recently commissioned.  The States believe that this
alternative methodology, which is discussed in Part IV.C [see comment in
outline topic VIII.1] above, is more accurate than the existing
OMB-approved methodology.  We are not convinced that the peer review
panel is correct that EPA overestimated the experience and knowledge
that a typical TRI reporting facility would have.  TRI has been in place
for nearly two decades, and anecdotal evidence in many states indicates
that TRI reporting facilities have developed sufficient experience and
knowledge to make reporting a relatively routine matter.

3. Comments on the external Peer Review Panel conclusions (by Abt):

Under the current approved ICR methodology, the Form R burden estimates
for PBT and non-PBT chemicals for form completion and calculation are
47.1 and 25.2 hours respectively. ... These estimates are low compared
with our members' experience with TRI reporting.  The peer reviewers of
the document offered some possible reasons for the estimates being too
low including those listed below. ·TRI reporting experts ("three staff
with nearly 40 years of combined experience") were used to do the
estimates. The time it would take these experts to complete the form is
not typical of most people who are actually completing the forms. ·EPA
assumes too much burden reduction after the first year of reporting
(i.e., in "subsequent years.") EPA fails to recognize changes in
personnel, changes to instructions and guidance, and the fact that rule
familiarization is necessary each year. ·EPA does not adequately
account for the time that goes into making threshold determinations,
which is often necessary for chemicals for which forms are not even
filed (when they are determined to be manufactured, processed, and
otherwise used below the thresholds). ·EPA does not adequately account
for activities in areas of data gathering, management involvement,
quality assurance, and others that are not directly part of form
completion. ·EPA's assumption that facilities are "modern and
well-organized" may not hold true for many facilities. ·The analysis
seems to seriously underestimate the time necessary to conduct some
tasks such as reviewing complex technical guidance materials,
identifying fugitive release points, identifying relevant process
operating conditions, determining materials usages, obtaining waste
management information, review of forms by management, data entry (i.e.,
typing) and others.  Many of the peer reviewers provided useful insights
into specific instances in which the engineering estimates are
unrealistically low.  API urges EPA to address these peer reviewer
comments in any new methodology for estimating TRI burden.

The peer review does not in any case address the validity of the key
assumptions of the burden or burden reduction estimates.  The main
qualification presented for the reviewers is that they are external to
EPA and experienced at filling out TRI forms.  Not being EPA employees,
however, is hardly tantamount to independence or disinterestedness.  The
proposed Form A threshold change is not something that arises from the
interests of EPA itself, but from the desires and interests of reporting
industries.  The individuals doing the "peer" review, it must be noted,
all come from the business sector.  The assertion that the group is
"diverse" isn't accurate.  It represents only business interests, not
public interests or environmental health interests.  It represents only
the interests of TRI reporters, not the interests of TRI data users.

The Form A is not as lengthy as the Form R, and thus will conceivably
reduce the time required to complete a TRI Report.  However, Peabody
agrees with the external peer review in that EPA has overestimated the
experience of a typical TRI reporting facility, and consequently, has
underestimated the time it takes to complete a Form A or Form R.

4. Comments on the current OMB-approved reporting burden estimates (by
Abt):

EPA's unit burden estimates are the same as those used in the most
recent approved Information Collection Request (ICR).  API submitted
comments on that ICR, which we incorporate by reference.8  We found
several shortcomings in the methodology used to derive these estimates. 
First, by deriving a "per form" estimate from all facilities and then
applying it to an assumed 3 forms per facility for the entire reporting
universe, EPA is not adequately portraying burden. ... Second, EPA does
not acknowledge the time required for rule familiarization (except in
the year after a new final rule) and does not adequately consider time
spent for training. [For details, see p. 9-10, Document ID 1961]

If the burden estimates were merely dictated by the White House Office
of Management and Budget (OMB), then the public could make a rebuttable
presumption that they were politically imposed, rather than based on
sound science, objective observation, or economic reality.  Good
rulemaking under the Administrative Procedures Act requires an agency to
document on the record the facts and justifications supporting its
proposed action.  Yet simply saying that burden estimates were handed
down by OMB removes this key and fundamental issue from the rulemaking
record altogether.  OMB is not bound to follow the transparency
requirements of the Administrative Procedures Act as it intervenes in
agency rulemaking -- nor is it obligated to disclose the substance or
detail of its ex parte communications with industry groups who often
have a financial interest in the outcome of the rulemaking, and often
have also made large campaign contributions to the current occupant of
the White House.  This is a recipe for the corruption of government, and
certainly a reason for concern that the present TRI proposal may be
seriously flawed.  OMB itself has no original expertise in this area. 
OMB officials do not fill out TRI forms.  They do not report publicly
having ever done research on how much time it takes industry to fill out
the forms.  The EPA docket includes no information on how OMB's
prescribed estimates were derived.  In fact, the EPA docket does not
even try to assert that the burden estimates are accurate or justified
by a factual record.  It simply reflects the reality that EPA used the
estimates because OMB told it to, and that OMB has the power to dictate
agency actions.  In other words, the regulatory record shows on its face
that the burden estimates are arbitrary and capricious.  Furthermore,
information in the docket for this rulemaking actually suggests that OMB
imposed inaccurate or unrealistic burden estimates on EPA.  The July 16,
2004, memo from Abt Associates to Paul Borst at EPA
(EPA-HQ-TRI-2005-0073-0011) states that OMB imposed higher burden
estimates than EPA originally proposed.  Overestimating the burden, of
course, overstates the case for EPA's proposed data cutbacks, without
following the rules of transparency and offering the factual
justifications that are supposed to make fair rulemaking possible.

5. Any other comments on the methodology and results as well as any
data that the public feels would be useful in a revised analysis (by
Abt):

First, it is not entirely clear there is a sense of "burden" felt by
most TRI reporting facilities.  Based on our survey of facility TRI
contacts across the country, the average amount of time it takes
employees yearly to fill out and submit the TRI reporting form was just
under five weeks.  This figure does vary considerably, however, across
the range of facilities. When asked whether their experience with the
TRI program was positive, neutral, or negative, only 14% expressed a
clearly negative assessment.  In contrast, 36 percent reported either
strongly positive or positive experience with the TRI, and 50 percent
indicated a neutral or mixed position on the issue.  Consistent with
these findings of either positive or neutral experience with the TRI
program, a number of the facility contacts commented that filling out
the Form R had become easier in recent years and some made positive
comments about the EPA's software that has allowed for an easier
reporting of data.  The variations in perspectives across these
facilities suggest, at a minimum, that the TRI program is not seen
uniformly as a burden. ... A very high percentage of respondents (73
percent) also indicated that as a result of this experience with the
program they are better able to understand what they need to do for
subsequent TRI reports.  That is, with experience, the burden of TRI
reporting seems to decline. ... Any assumption of a burden to the
business sector should be backed with empirical data. It is not enough
for EPA to believe in the abstract that there is a burden among TRI
reporting facilities.  Rather, arguments for reducing burden should be
based on the best available data as to whether a substantial burden
actually exists.  It may be that the burden varies by industrial sector
or other key characteristics such as size of facility, in which case
greater efforts may be needed to assist selected facilities in complying
with TRI requirements. [Results and suggestions based on 3-year study of
the effects of TRI on corporate and community decision-making, including
two national surveys. See Document Number 900.1 for details.]

The burden reduction estimates compiled by EPA fail to account for
several additional issues.  They do not appear to account for additional
activities necessary to update/train facility representatives on the
changing requirements.  Even more importantly, for states and other
organizations which actively compile, analyze and distribute the data,
the burden reduction estimates do not account for additional efforts
necessary to track and convey the changes in the reporting requirements
to citizens and other public groups who make use of the data.  Changes
to the reporting requirements can cause significant complications when
evaluating overall trends and conducting cross-year analyses.  In many
cases, re-programming databases to account for changes in the basis on
which data is reported requires significant time and effort.  When these
additional aspects are considered, there may be no positive burden
reduction at all.

The TRI reporting burden results from the lengthy analysis of materials
that a facility manufactures, processes, or otherwise uses, and the
tedious calculations that accompany this process.  Such calculations
pertinent to the coal mining industry include, but are not limited to,
the detailed exploration of products used at a facility for applicable
TRI chemicals and quantities, the coincidental manufacture of chemicals
through storm-water runoff, and the otherwise use of beneficially used
coal combustion waste (CCW).  The TRI analysis results in many hours of
work often ending in the conclusion that no TRI chemicals exceed any
applicable threshold.

Over the years, SC Johnson has submitted Form Rs for a range of 8 to
approximately 20 SARA reportable chemicals.  In 2004, we submitted 11
Form Rs.  In recent years, our TRI filings have required about 400 hours
of labor and up to $35,000 in consultant support.

OMB Watch is troubled about the lack of clarity surrounding the burden
estimates. Considering that burden is why EPA is submitting the proposed
rule, the figures are critical to determining if the rule is justified. 
The first issue is whether the burden on companies filing TRI forms is
unduly high.  The second issue is that the burden estimates constitute
the entire benefit that EPA argues will be gained by making these
reporting changes.  OMB Watch questions both aspects of EPA's
justification. ... In other words, OMB Watch believes the proposed rule
fails in two respects.  First, it fails to establish a realistic
baseline burden estimate and, instead, presents figures which are
remarkably close to an estimate previously rejected by EPA.  Second, the
agency overestimates the burden reduction that will be gained by the
proposed changes, in part, because EPA fails to consider that companies
will have to calculate releases to determine whether or not they are
eligible for Form A and, in part, because of the inflated baseline.  The
combination of these two factors leads to an unreasonable and inaccurate
estimate of the impact that the proposed changes to TRI will have on
burden.  EPA should have a clearly establish baseline burden and
reliable estimate of the burden reduction before moving forward with the
drastic reporting reductions that EPA is currently proposing. ... It is
clear from these statements that the burden posed by TRI, even from an
industry perspective, is at best questionable.  Before the EPA moves
forward with the proposed changes to the TRI program, OMB Watch believes
that EPA should reach a consensus on a reliable way to calculate the
burden that TRI places on companies.  The proposed rule even mentions
that there is some disagreement even among the peer reviewers on the
methodology for calculating burden.  OMB Watch believes that the issue
of burden calculation must be settled before moving forward with a
burden reduction rule.  The agency asks for input on the issues and
questions raised by burden peer reviewers. However, the agency should
have received public input and response before moving forward with the
proposed rule.  Instead, the agency appears to be rushing through the
process and proposing a burden reduction alongside acknowledgements that
the burden estimates are still in question.  Given the constantly
changing numbers put forward by EPA, OMB Watch recommends that EPA
withdraw or suspend the proposed rule change until an accurate
assessment of the burden placed on companies is calculated.  Such a
study should be able to explain why, in the past, a wide range of
calculations were reached, why EPA is choosing not to use estimates that
differ from its current calculations, and why companies across the
United States do not agree with the finding that the TRI program is
unreasonably burdensome.

EPA Response to all comments submitted on burden estimation methodology:

Several comments addressed the Agency’s proposed methodology for
improving the estimation of calculation and form completion burden.  As
discussed in the preamble to the proposed rule, EPA used the proposed
rule as a means to seek comment on this proposed methodology.  The
preamble explained that the approach taken by the Agency in developing
the new burden estimation methodology was to assemble a team of persons
with knowledge or experience related to the preparation of TRI reports
who then applied their best professional judgment to break down the
reporting requirements into separate item-specific tasks, and then
estimate the average time required to complete each task.  The report
was internally vetted through Agency TRI program personnel in the
Regions and at Headquarters.  The Agency also conducted an external peer
review of this new analysis to assess the reasonableness of the new
methodology and specific burden estimates.  The engineering estimate and
the peer review summary were placed in the docket.  In the preamble to
the proposed rule the Agency solicited comment on the reasonableness and
accuracy of the methodology, form completion steps and specific burden
estimates as well as on the conclusions of the external peer review.

In response to this request for comment, several commenters addressed
the engineering estimates.  Some commenters questioned the accuracy of
the estimates.  One commenter noted that EPA did not measure the actual
time the tasks take for actual people in actual industries.  Another
commenter suggested that a new, statistically robust burden survey is
warranted to produce a reliable and accurate estimate of TRI reporting
burden.  Some commenters claimed that the engineering estimates of TRI
reporting burden are too low because EPA overestimated the experience of
a typical TRI reporting facility in completing its TRI reporting
obligations.  One commenter asserted that the notable difference between
the burden estimates of the engineering analysis and the OMB-approved
information collection request (ICR) burden estimates calls in question
the true burden associated with TRI reporting.  Aside from the
engineering estimates, in its comment OMB Watch compared the burden
estimates in the current and previous OMB-approved ICR figures to
question the validity of the baseline burden estimates relied upon by
EPA in this rulemaking.  API’s comment stated that it submitted
comments on the current ICR, for which it found several shortcomings in
the methodology used to derive estimates.  

While EPA greatly appreciates the comments provided on the proposed
methodology for estimating TRI reporting burden, and will preserve these
comments and may consider them in future ICR renewals, as stated in the
preamble to the proposed rule, the burden methodology relied upon in the
proposal was based on the currently approved estimates of the time
required to complete a Form R or Form A and is summarized in the
economic analysis contained in the docket for the proposed rule. 
Similarly, the burden methodology relied upon for the final rule is
based on the current OMB-approved ICR.  For more information on the
burden estimates please refer to the economic analysis for the final
rule, which has been placed in the docket.  For more information about
the currently approved ICR, please access the following Agency website: 
 HYPERLINK "http://www.epa.gov/tri/lawsandregs/index.htm#icr" 
http://www.epa.gov/tri/lawsandregs/index.htm#icr  

ECONOMIC AND REGULATORY ANALYSIS

1. Cost savings estimates are too high 

Topic Comment Summary (by Abt):

Four commenters stated that the burden reduction cost savings estimates
are too high. One commenter stated that the proposed rule would only
shift the burden of identification and enforcement of public health
issues from industry to the public. 

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI stated that cost savings are overestimated for several reasons:
(1) according to a study that developed an alternate methodology for
improving the estimation of the burden of completing these forms (the
"alternate burden estimation methodology"), the estimated amount of time
saved by each use of Form A would be approximately 25 percent lower than
the figures EPA used in deriving the $430 and $790 figures, resulting in
an aggregate burden reduction of $5.54 million, not $7.38 million; (2)
the $430 and $790 figures include approximately $81 in recordkeeping/
mailing costs, but since facilities would still have to mail Form A, and
would still need to keep records to determine whether they qualify for
Form A, it is not clear why a benefit reduction for
recordkeeping/mailing costs of any amount, let alone this full amount,
should be attributed to each form; (3) EPA contends that facilities
reporting on Form A would save 17.5 hours per form because they would no
longer need to determine the maximum amount of the TRI chemical on-site
and would not need to calculate the production ratio, but the States
doubt that these two activities are responsible for approximately
one-third of the Form R (17.5 of 52.1 hours) burden reduction. The
Attorneys General also stated that using a different basis for
reportable (waste-based) thresholds for PBT chemicals - the ARA - and
for nondioxin PBT chemicals - the PRA - poses a risk of confusion among
reporting entities and could result in increased burden.

Deleware Department of Natural Resources and Environmental Control
stated that the claim that burden reduction would accrue to facilities
using Form A because the maximum amount on site is not reported on this
form and thus would not need to be calculated (70 Fed. Reg. 57841) may
not be correct in many situations, as this amount is required for EPCRA
Sections 311/312 reporting.

Response: 

While EPA greatly appreciates the comments provided on the proposed
methodology for estimating TRI reporting burden, and will preserve these
comments and may consider them in future ICR renewals, as stated in the
preamble to the proposed rule, the burden methodology relied upon in the
proposal was based on the currently approved estimates of the time
required to complete a Form R or Form A and is summarized in the
economic analysis contained in the docket for the proposed rule. 
Similarly, the burden methodology relied upon for the final rule is
based on the current OMB-approved ICR.  For more information on the
burden estimates please refer to the economic analysis for the final
rule, which has been placed in the docket.  For more information about
the currently approved ICR, please access the following Agency website: 
 HYPERLINK "http://www.epa.gov/tri/lawsandregs/index.htm#icr" 
http://www.epa.gov/tri/lawsandregs/index.htm#icr  

A. Form A utilization rates are not taken into account 

Topic Comment Summary (by Abt):

Seven commenters stated that the burden reduction cost savings estimates
are too high because Form A utilization rates are not taken into
account. Many stated that because current Form A utilization rate is
about 50 percent, it is inappropriate for EPA to estimate cost savings
assuming 100 percent Form A utilization and recommend EPA reduce by half
its cost and burden savings estimates for the proposed rule.

Deleware Department of Natural Resources and Environmental Control
stated that statements made by EPA in the FR notice: "EPA believes that
many such facilities may choose to continue using Form R, since the
burden of completing Form R for such facilities is small, and Form R
allows them to show the public that they are neither releasing nor
generating and managing as waste any of the PBT chemicals" (70 Fed. Reg.
57839) and for non-PBT's, "it is important to note that the actual
burden savings may be considerably less if historical rates of Form A
use continue in the future" (70 Fed. Reg. 57842) demonstrate that the
additional effort necessary to complete a Form R versus a Form A is not
significant. As noted by EPA within the proposed rule, when the 1994
rulemaking established the Form A option, "only about half of the
eligible respondents actually switched to Form A" (70 Fed. Reg.
57841-42). 

American Petroleum Institute (API) and GE Corporate Environmental
Programs stated that if the proposed rule does not address the reasons
for low utilization of Form A, then there is no reason to expect that a
significantly larger percentage of eligible facilities will choose to
use Form A under the proposed rule than is currently the case.

Michigan Department of Environmental Quality stated that there is little
or no indication that changing the eligibility threshold and expanding
its use to PBT chemicals will result in increased reporting on Form A.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI calculated that applying the 54 percent usage rate to EPA's
burden reduction figure, the aggregate burden reduction would be $3.99
million, or only $80,000 per state on average.

Response: 

The Agency acknowledges that the actual burden reduced by the rule may
be less than the estimate presented in the rule because some facilities
that are eligible for Form A will choose to report on Form R. Because it
is unknown with any precision the facilities that will be eligible and
what utilization rate will result from the proposal, EPA chose to base
its estimates of burden reduced on OMB-approved burden estimates and all
facilities that appear based on past data to be eligible under the new
criteria. The historic Form A utilization rate may or may not be
predictive of the prospective utilization rate resulting from the Form A
proposal.  

B. Data collection burden is similar for both Form R and Form A 

Topic Comment Summary (by Abt):

21 unique comments representing 22 commenters stated that the burden
reduction cost savings estimates are too high because the data
collection burden is similar for both Form R and Form A. Most of the
commenters, including the American Petroleum Institute, General
Electric, the US Department of Energy, the Massachusetts Toxics Use
Reduction Act program, New Jersey Department of Environmental
Protection, the Society of Environmental Journalists, and NCASI stated
that they believe that most of the burden associated with TRI reporting
is in determining manufacturing, processing, and use quantities for
threshold determinations and then estimating releases and the other
waste management quantities, not in filling out the form. Commenters
stated that therefore, the only actual burden reduction realized is the
time to fill out the Form R versus Form A, which is minimal.

Eastman Chemical Company stated that by the time one collects all the
data needed for the 8.1-8.7 demonstration, basically all the work is
done for completion of Form R. Historically, Eastman has had a policy of
only submitting Form Rs, because of the insignificant difference in
burden plus concern with the Agency's enforcement approach. Onyx
Environmental Services also stated that this burden reduction initiative
will have only a minor impact in reducing the burden associated with
Onyx facilities preparing and filing the TRI report because facilities
must still review their records to determine if they meet the Form A
submittal requirements.

Delaware Department of Natural Resources and Environmental Control asked
why, if most of the Form R data elements must still be calculated to
determine if a Form A can be used, this data should go unreported.

New York State Department of Environmental Conservation stated that
EPA's estimates of burden reduction appear to focus on the time needed
to complete Form R vs. Form A. EPA's estimated burden reduction ranges
from 11.6 to 15.5 hours for PBTs, and from 5.7 to 7.6 hours for
non-PBTs. Companies will still need to track data, keep records, etc.,
regardless of which form they complete. The burden reduction amounts may
only be a small fraction of the total record keeping hours.

New Jersey Department of Environmental Protection stated that on page
57841 of the Federal Register proposal states that "… savings will
accrue because the facility would no longer need to determine the
maximum amount of the TRI chemical on-site at any one time in Section 4
of Form R." First, identifying this one data element is a very weak
justification of burden reduction. Second and more importantly, this is
simply not true. As noted above for the types of records that a facility
should maintain, the EPCRA Section 312, Tier II inventory reporting
requirement, these data elements still need to be calculated and records
maintained. Further, the same page and paragraph of the Federal Register
continues: "Moreover, the Production Ratio, which measures the relative
percentage of a TRI chemical used in a product relative to the year
before, would not have to be calculated if a facility submits a Form A."
This is a rather simple calculation step saved in the process. The data
that supports the determination of a Production Ratio will still need to
be collected and recorded per EPA documentation guidelines and if a
facility exceeds the Form A threshold from one year to the next, it will
need to employ these data for submission of a Form R. The next sentence
continues: "Eliminating the need to calculate these and other Form R
data elements that are not included on the Form A result in an estimated
burden savings of 17.5 hours per Form A." While on the same page at the
bottom of the middle column the proposal states: "Company records
supporting such determinations must be made available to EPA inspectors
upon request." This indicates with certainty that calculations need to
be made in support of determining which form, R or A is applicable in
any given year. Therefore, the above burden savings of more that two
work-days per form (i.e., 17.5 hours) seems highly overestimated to
enter data onto a form that is already recorded and documented for
compliance purposes. In addition, the use of the TRI-ME reporting
software further assists and streamlines the reporting process.

National Mining Association stated the truly significant TRI reporting
burden arises from the fundamental calculations a facility must make to
determine (1) whether it must file an annual TRI report(s) and (2) what
its "releases" may be. While it may take less time to complete a TRI
Form A as compared to a TRI Form R, completing a TRI reporting Form R or
Form A is a relatively small part of the facility's burden. It is the
many hours of data gathering and analysis leading up to that point that
make up the bulk of the TRI reporting burden.

National Environmental Trust stated that the American Chemistry Council
agrees that "the cost of reporting is in the calculations, not filling
out the forms." The need for many of those calculations will not
disappear if this proposal is adopted because facilities will have to be
able to document that they meet the new certification threshold anyway,
and by the ACC's own admission, the process of making these calculations
boosts efficiency.

Response: 

The Agency acknowledges that data collection and analysis costs may be
significant and actual burden saved by this rule may vary from facility
to facility. 

EPA believes that facilities with releases and other waste management
amounts well below the threshold for Form A may be spared the burden of
detailed calculations each year to determine eligibility for Form A. 
Thus, it is possible that with the expanded potential to use form A,
some facilities that had previously been eligible to use form A in the
past but had not chosen to do so might begin incorporating use of the
form at their facility because it would take less strenuous calculations
to ensure that they have qualified. 

The Agency also agrees that the availability of TRI-ME reporting
software is likely to assist and streamline the reporting process. This
could mean that the Agency's Form R reporting cost estimates are
overstated, and thus the Agency's estimate of the cost savings
associated with the rule could be overstated.

2. Cost savings estimates are too low 

Topic Comment Summary (by Abt):

One commenter stated that cost savings estimates are too low. The US
Small Business Administration stated that industry commenters have long
contended that EPA has been underestimating the costs of complying with
TRI, particularly in recent years. The Advocacy-sponsored JFA report
cites costs of more than $300 million annually for the TRI program. In
addition, facilities bear substantial indirect costs from 'piggyback'
requirements associated with a TRI listing, such as federal storm water
regulations and other federal and state requirements (e.g., state
pollution prevention requirements) triggered by TRI reporting. Given the
underestimated costs of preparing the Form R, we believe that EPA has
substantially underestimated the savings from the expanded use of the
Form A. In addition, EPA has not accounted for the Form A savings that
would result from the reduction in the degree of precision of the
engineering calculations needed to estimate a 5000 pound threshold,
instead of a 500 pound threshold.

Response: 

While EPA greatly appreciates the comments provided on the methodology
for estimating TRI reporting burden, and will preserve these comments
and may consider them in future ICR renewals, as stated in the preamble
to the proposed rule, the burden methodology relied upon in the proposal
was based on the currently approved estimates of the time required to
complete a Form R or Form A and is summarized in the economic analysis
contained in the docket for the proposed rule.  Similarly, the burden
methodology relied upon for the final rule is based on the current
OMB-approved ICR.  For more information on the burden estimates please
refer to the economic analysis for the final rule, which has been placed
in the docket.  For more information about the currently approved ICR,
please access the following Agency website:   HYPERLINK
"http://www.epa.gov/tri/lawsandregs/index.htm#icr" 
http://www.epa.gov/tri/lawsandregs/index.htm#icr  

EPA does not take into account requirements that are triggered by TRI
reporting when calculating the burden associated with the TRI
information collection.  Burden associated with additional requirements
outside of the TRI program is assessed when those requirements are
promulgated as necessary.  

3. Deficiencies in Burden Reporting Estimates 

Topic Comment Summary (by Abt):

One commenter stated that there are deficiencies in the burden reporting
estimates. The Delaware Department of Natural Resources and
Environmental Control stated that EPA’s burden reduction estimates do
not appear to account for additional activities necessary to
update/train facility representatives on the changing requirements. Even
more importantly, for states and other organizations which actively
compile, analyze and distribute the data, the burden reduction estimates
do not account for additional efforts necessary to track and convey the
changes in the reporting requirements to citizens and other public
groups who make use of the data. In many cases, re-programming databases
to account for changes in the basis on which data is reported requires
significant time and effort. When these additional aspects are
considered, there may be no positive burden reduction at all.

Response: 

The commenter is correct that the Agency's burden estimates associated
with this rule do not attempt to account for any rule familiarization
and adjustment costs such as the training of facility representatives
regarding the provisions of this rule. However, the Agency believes that
any such costs are likely to be negligible. While the baseline unit
burden estimates do attempt to account for the rule familiarization
costs that would occur to a facility during first year of compliance
with TRI reporting requirements, this rule primarily affects facilities
that are already reporting to TRI. Since facilities impacted by this
rule are already familiar with TRI reporting, the Agency expects that
any familiarization and adjustment costs from this rule will be
insignificant

With regard to the burden on data users, EPA does not analyze the burden
of TRI data users because use of TRI data is voluntary.  However, EPA
strives to make TRI data easy to use and understandable to the public. 
EPA will continue to work towards improving the accessibility of the
data. 

4. Comments on the Impact Analysis 

Topic Comment Summary (by Abt):

Four commenters made comments on the Impact Analysis. The State
Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM, VT, WI
stated that the proposed rule is contrary to evidence regarding the
benefits of the TRI program and is not based on documented need. For
example, EPA has not conducted comprehensive studies for all communities
potentially affected by the proposed rule to determine the magnitude and
scope of effects that the proposed rule may have on the amount of TRI
reporting available in those communities. States' preliminary, limited
analyses demonstrate that the proposed changes may significantly reduce
the amount of TRI reporting available in some communities, including
disproportionate impacts on minority or low-income communities. 

In regard to the ZIP code analysis assessing impacts of increased Form A
eligibility for non-PBTs, the State Attorneys General stated that under
the proposed changes there would be over 1100 ZIP codes where the amount
of non-PBT toxic chemicals would likely be impossible to determine
because all TRI reporting would be done on Form A. In individual states,
the proposed rule could have wide ranging impacts. In New Hampshire,
most businesses are small, and the proposed changes would allow 119 of
the 151 businesses that currently providing full Form R reporting to
stop doing so. The loss of this data would affect many programs, both
state and local. 

OMB Watch stated that it is EPA's responsibility to review
community-specific impacts of the agency's proposed changes on the use
of TRI information. The agency should have supporting evidence that
establishes that the changes and subsequent loss of data will not
adversely impact the information's ability to be of use to stakeholders.
The agency offers no data or analysis to support its conclusion that the
usefulness of the TRI to the public will not be compromised. The agency
provides no review of how often data that will be lost under the changes
has been accessed and/or downloaded by users of EPA's online search tool
TRI Explorer. The agency did not survey TRI users—community groups,
state officials, public interest groups, etc.—on their opinions of the
impact on the proposed changes on the ways in which the various groups
use the data. OMB Watch believes that EPA should withdraw the current
rulemaking until the agency has research firmly establishing that any
proposed changes in the amount of information collected will not
adversely affect the uses of TRI data.

Further, OMB Watch stated that EPA should explain whether the threshold
reporting changes in the proposed rule will interfere with any of the
types of activities described in the examples described in their
submission and review any other examples of TRI data use and explain how
those activities will be able to continue unimpeded by the loss of data
that would result from the proposed changes. [Examples provided in text
and in Appendix A of Document ID 4563.]

The US Small Business Administration (SBA) wrote that EPA’s Impact
Analysis estimates will overstate the actual impacts because many
facilities will continue to use Form R regardless of a change in Form A
eligibility. It is likely that many of the facilities that continue to
use Form R are larger firms that can more easily absorb the burden of
preparing Form R. 

In regard to the ZIP code analysis assessing impacts of increased Form A
eligibility for non-PBTs, SBA wrote that EPA's distribution of number of
Form Rs lost is considerably different from the distribution calculated
by their contractor, Pechan. To try and determine the cause for the
discrepancies, Pechan conducted a review of EPA's data for the zip codes
for which Pechan's analysis indicated that (1) all Form Rs become Form A
eligible; and (2) more than four Form Rs become Form A eligible. The
review showed that EPA data-derived estimates match Pechan's estimates
for every zip code except 75207. In addition, EPA's data indicated that
zip code 35214 contained two fewer Form Rs eligible for Form A reporting
at both the 500 and 5,000 lb ARA thresholds. For zip codes 75207 and
35214, Pechan compared EPA estimates of the releases that would no
longer be reported at a 5,000 lb ARA to estimates Pechan derived from
the TRI database. A review of Pechan's TRI database for these zip codes
uncovered one or two Form Rs whose releases equal the zip code level
discrepancy between EPA's release estimate and Pechan's release
estimate. [For details, see tables and text on p. 8-10, Document Number
2330]

In regard to EPA’s estimations of data loss associated with increased
eligibility for PBTs, SBA wrote that Pechan's estimated percentage of
current Form R PRA waste that continues to be reported on Form R is
significantly higher than the value estimated by EPA (99.99 versus
99.0). EPA has reported this error in an email communication to the OA,
but has not yet corrected this error in the record to our knowledge.

New Jersey Department of Environmental Protection (NJDEP) wrote that
while EPA's proposal presents an assessment of impacts and data loss
based upon one year (2002), NJDEP looked at RPPR data for the last 10
reporting years (1995 - 2004) to get a sense of whether any one year is
representative of most, and found there is a demonstrated and
significant variability among the years. The number of facilities and
chemical reports that are submitted, as well as the quantities of
releases, on-site waste management, and off-site transfers of toxic
chemicals varies and there is no general trend to be discerned from
these data. This 10-year analysis reveals that existing data variability
combined with the proposed higher Form A threshold result in the real
probability of creating substantial gaps in release details for many
facilities and chemical-specific reports from year to year.

Response: 

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities. 

The Agency agrees with the commenter's statement that it is likely that
many of the facilities will continue to use Form R even if they are
eligible for Form A. The Agency also agrees that there is and likely
will continue to be variation in Form A usage and impact on a
year-to-year basis.  

The Agency's estimate of zip codes that would have all Form Rs convert
to Form As is 665 under the proposal, not 1100 as stated by the State
Attorney’s General. The Agency disagrees with commenter that the
amount of non-PBT chemicals in affected zip codes would be impossible to
determine. First, Form A is a range report that represents quantities of
a non-PBT chemical has been released in a range of zero to 2000 pounds
and managed as waste in a range of zero to 5000 pounds.  For PBTs, Form
A represent zero releases and waste management in a range of zero to
500.  Second, if the facility has filed Form Rs previously, historic
release and transfer volumes for the chemical may provide additional
data that a community could reference. In the case of New Hampshire,
although the Agency has not completed a state-by-state analysis of Phase
II impacts, the Agency acknowledges that some states will be affected to
a greater extent than others.

The Agency acknowledges receiving this error report referred to by SBA
and has made the correction in the final EA. 

For information about the extent of detailed Form R information that may
no longer be reported on Form R as a result of this rule, refer to the
economic analysis accompanying the rule.  The economic analyses for both
the proposed rule and the final rule have been placed in the docket for
this rulemaking.  This docket can be accessed at www.regulations.gov
under docket ID: TRI-2005-0073.  Those interested in performing
additional analysis related to this rule should consider utilizing
EPA’s Envirofacts (http://www.epa.gov/enviro/) and TRI Explorer
(http://www.epa.gov/triexplorer) databases as well as other EPA
resources.

5. Noncompliance with Executive Orders 

Topic Comment Summary (by Abt):

Three unique comments representing four commenters stated that the
proposed rule is in noncompliance with executive orders (excluding EO
13045 and EO 12898).

The Society of Environmental Journalists wrote that as a "significant
regulatory action," the proposed rule is subject to formal OMB review,
and the Oct. 4 Notice states that "Changes made in response to OMB
suggestions or recommendations are documented in the docket to today's
proposal." Yet the Notice contains no specific citation of any document
in the docket detailing EPA's dialogue with OMB (other than reference in
the Economic Analysis to OMB-dictated burden estimates), and the Society
has been unable to find any such document in the docket. EO 12866 also
requires cost-benefit analyses, of course, which EPA in this case has
failed to perform.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI wrote that the proposed rule does not constitute a “significant
regulatory action” under EO12866, as (1) the annual effect of the
rule, under EPA's own calculations, is only approximately $7.38 million,
and EPA does not suggest that the proposed rule would affect in a
material way, the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; (2) EPA identifies no
serious inconsistency or interference with action by any other agency;
(3) EPA identifies no impact on entitlements, grants, user fees, or loan
programs or the rights or obligations of their recipients; and (4) EPA
identifies no novel legal or policy issues. EPA cites no authority for
OMB review other than the executive order. Thus, in the absence of a
reasoned determination by EPA that the standard set out in the executive
order is met, and in the absence of any grounds for such a
determination, there was no legal authority for OMB review of this rule.

The States Attorneys General further state in regard to the Paperwork
Reduction Act that EPA appears to have made a mistake: this section of
the preamble refers to total burden reduction of 202,000 hours or $9.2
million, while section VA.2 of the preamble, and the chart contained
therein, refers to a total burden reduction of 164,000 hours or $7.4
million. EPA should correct or explain the discrepancy. In any event, as
set forth elsewhere in the comments from the State Attorneys General C
[see comments in outline topics II.1.D, VIII.1, VIII.1.A, VIII.1.C, and
VIII.7.A], EPA's burden reduction estimates overstate the actual burden
reduction impact of the proposed rule.

Two commenters believe that EPA is not in compliance with EO 13132 on
Federalism.

The State Attorneys General wrote that States rely on TRI data for a
variety of important purposes. Thus, contrary to EPA's conclusion, the
proposed rule would have a substantial direct effect on States because
it would interfere with their ability to rely on TRI as a comprehensive
source of data to analyze, legislate, regulate and undertake enforcement
with respect to hazards from toxic chemicals.

Under Executive Order 13132, Federalism, when a federal policy has a
substantial direct effect on the states, one of the fundamental
principles of federalism EPA is to apply is that "[p]olicies of the
national government should recognize the responsibilities of - and
should encourage opportunities for - individuals, families,
neighborhoods, local governments and private associations to achieve
their personal, social, and economic objectives through cooperative
effort."  The proposed rule is contrary to that principle, as it reduces
the ability of individuals and entities to achieve personal security and
environmental protection by reducing the amount of publicly available
information regarding toxic chemicals in their communities. 

OMB Watch also disagrees with EPA's finding that the proposed rule will
not have a substantial impact on states. Specifically, EPA states in the
proposed rule; "the proposed rule that does not have federalism
implications. It will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132." 

OMB Watch believes that EPA is incorrect. The rule changes would have
substantial direct effects on states in several obvious respects. Many
state programs depend directly upon TRI data. States across the country
use TRI-collected information for their own state programs to guide
pollution prevention efforts, inform enforcement priorities and address
environmental justice issues. If the changes go into effect, much of
this information will be lost, potentially endangering the effectiveness
of the state programs and, hence, the health and safety of citizens
across the country. According to OMB Watch's analysis, at least fifteen
states will loose critical numerical pollution data on more than 100
facilities, if EPA implements the changes to Form A reporting: [table
provided in submission, Document Number 4563].

OMB Watch stated EPA's claim that there will be no substantial direct
effect on states is in direct contradiction with the statements of
numerous state officials regarding the proposed TRI changes. Hence, in
order to abide by Executive Order 13132, a full and thorough process
needs to be developed to ensure input from state and local officials.

Response: 

The Agency disagrees with the comment that it has failed to comply with
EO 12866 by not providing a cost-benefit analysis. The Agency has
considered both cost saving and impacts (lost benefits) of the Phase II
proposal and provided the analysis in the Economic Analysis which can be
found in the docket for this rule.  This docket can be accessed at
www.regulations.gov under docket ID: TRI-2005-0073.  

EPA disagrees with the commenters because this rule raises novel legal
or policy issues.  Accordingly, EPA submitted this action and an
analysis of the potential costs and benefits associated with this action
to the Office of Management and Budget (OMB) for review under EO 12866. 
Any changes made to the draft final rule in response to OMB
recommendations have been documented in the docket for this action.

 

With regard to the Paperwork Reduction Act, the Agency agrees that the
reference in the preamble to 202,000 hours of burden savings and $9.2
million of cost savings is a mistake. The correct estimates for cost and
burden savings provided in the economic analysis and Table 4 of the
preamble is 123,000 hours and $5.9 million. 

EPA disagrees with the commenters that this rule is inconsistent with
the principles and procedures of EO 13132, which pertains to rulemakings
that have federalism implications. This rule does not have federalism
implications because this rule does not preempt State authority in data
collection of toxic chemical use nor impose substantial compliance costs
on the part of State governments. State governments are not TRI
respondents.  While EPA does expect some reduction in the amount of
detailed information available, this reduction will impact a fairly
small number of facilities with relatively low annual reportable amounts
and releases.   The information currently collected from Form R will be
replaced with information from a Form A range report and will indicate
what chemical was present and an upperbound quantity for both releases
and other waste management.  Therefore, EPA does not believe this rule
will have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government, as
specified in Executive Order 13132.

 

A. EO 13045- Impacts on Children's Health 

Topic Comment Summary (by Abt):

Two unique submissions representing three commenters stated that the
proposed rule is in noncompliance with executive order 13045 (Protection
of Children From Environmental Health Risks and Safety Risks). Society
of Environmental Journalists wrote that as a significant regulatory
action, the proposal must comply with Executive Order 13045. EPA states,
in its Oct. 4 Notice, that it has determined that EO 13045 does not
apply. The commenter believes this determination is in error as the
proposed rulemaking does indeed "concern an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children." Parents who may want to protect their children from
toxic emissions that trigger life-threatening asthma attacks, or who
want to protect kids from emissions of known carcinogens that could be a
cause of childhood leukemia would often lose, under this rule, their
first line of defense: information warning them of dangers. In addition,
the reason EPA gives for determining that EO 13045 does not apply;
namely, that the proposed rule is not a "significant" regulatory action
seems to be in flat contradiction to EPA's assertion that it is indeed a
significant regulatory action.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI agreed that the proposed rule is not formally subject to
Executive Order 13045, but wrote, nonetheless, that EPA could and should
have analyzed whether the reduction of information regarding release and
waste management of toxic chemicals set forth in the proposed rule has
any effect on the ability of communities, first responders and
governments to protect children from environmental health and safety
risks.

Response: 

Executive Order 13045 applies to regulations that are “economically
significant,” as defined by Executive Order 12866, Regulatory Planning
and Review, (i.e., regulations that may have an annual effect on the
economy of $100,000,000 or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local or Tribal
governments or communities). EPA has determined that this rule is not
economically significant.  Therefore EO 13045 does not apply to this
action.  While EPA does expect some reduction in the amount of detailed
TRI information available as a result of this rule, this reduction will
impact a fairly small number of facilities with relatively low annual
reportable amounts and releases.   The information currently collected
from Form R will be replaced with information from a Form A range report
and will indicate what chemical was present and an upperbound quantity
for both releases and other waste management.  

B. EO 12898- Impacts on Environmental Justice 

Topic Comment Summary (by Abt):

Eight unique submissions representing nine commenters stated that the
proposed rule is in noncompliance with executive order 12898 (Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations). Many commenters, including the American Public
Health Association and the Children’s Environmental Health Network,
stated that in the proposed rule, EPA dismissed impacts on environmental
justice without justification or supporting analyses.

Society of Environmental Journalists wrote that because this federal
action will have a major adverse impact on minority and low-income
populations, it is specious to argue that TRI does not count toward the
government's environmental justice goals because its action is not
directly regulatory.

Don't Waste Arizona, Inc wrote that data that companies utilize to
prepare their TRI reports would still be available, so the actual
amounts released to the environment could still technically be
determined, but it would shift the burden away from the polluter to
academia and to the public. Because mapping of TRI facilities and
environmental justice communities show a concentration of TRI-reporting
facilities are located in or adjacent to environmental justice
communities, this shifting of the burden away from industry to the
affected public is a disparate impact on environmental justice
communities, and is therefore an intentional violation of Title VI of
the Civil Rights Act and therefore illegal. The proposed changes hamper
environmental justice efforts and other uses of the TRI data by
communities, adversely affecting other EPA-funded programs.

The Columbia River Inter-Tribal Fish Commission wrote that the EPA has
acknowledged its trust responsibility to the tribes to protect tribal
trust resources. The EPA has also acknowledged its obligation under
Executive Order 12898 to ensure that no population segment will bear an
undue amount of adverse human health based on the agencie's policies. It
is a fact that tribal members consume fish (including salmonids,
sturgeon and lamprey) in far greater quantities than the general
population. It is also a fact that most of these fish are tainted with
high levels of toxic contaminants. Even at low levels, toxins can
bioaccumulate in many fish species and when consumed in great quantities
can adversely affect human health. The goal of tribal resource
biologists and managers has been to decrease the source of these toxins.
Tribes, however, are severely lacking in resources to do so. By using
TRI data, the tribes are able to address these problems. Without a
comprehensive and robust inventory, however, the tribes will continue to
bear a disproportionately high risk of harm to their health.

Environmental Justice Consultants wrote that accurate and complete
reporting of TRI data has been one of the best right-to know tools for
environmental justice communities. EPA's proposed changes in the TRI
reporting may diminish and remove a valuable resource from environmental
justice communities, public health professionals and communities, and
may have a negative impact.

One commenter wrote that by focusing on national rather than county data
(the proposed rule change states "the impacts will be very small in
terms of total national figures"), the proposed rule may
disproportionately affect some communities. The commenter suggests
reanalyzing exposure data to avoid violating this basic tenet of
environmental justice.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI wrote that EPA should evaluate any environmental justice issues,
such as disproportionate impact on minority or low-income communities.
Because the impact from use of toxic chemicals - releases and transport
of hazardous chemicals for recycling, for example - may extend beyond
the ZIP code in which the reporting facility is located, EPA should do a
county-by-county analysis, as apparently was done in the 1994 Form A
rulemaking, and should also do analyses based on the population within a
fixed radius (1 mile, 3 miles, 10 miles) of the facilities for which
reporting would be lost under the proposed rule. These analyses should
also include evaluation of possibility of disproportionate impacts on
minority and low-income individuals, pursuant to EPA's obligations under
the Executive Order 12898.

The State Attorneys General further wrote that EPA nowhere indicates in
the proposed rule that it has performed any studies or made any other
efforts to determine whether the proposed rule would have any such
disproportionate impacts. In minority or low-income communities, health
and emergency preparedness projects could be disproportionately hampered
by the proposed rule, but EPA has failed to evaluate such impacts.
Analysis of the situation in New York State indicates a potential for
disproportionate impact for minority and low-income residents in high
density areas. [For details, see Document ID 4553] EPA should perform
its own minority and low-income impact analyses for each affected area
across the nation. In the absence of any EPA effort to analyze the
effect of the proposed rule on minority or low-income communities, EPA
has not met its duty to "ensure" that the proposed rule would have no
disproportionate impacts on those communities, and thus EPA's conclusion
that the proposed rule has no such impact is contrary to Executive Order
12898.

Response: 

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities. 

Under Executive Order 12898, “Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,” EPA has
undertaken to incorporate environmental justice into its policies and
programs.  EPA is committed to addressing environmental justice
concerns, and is assuming a leadership role in environmental justice
initiatives to enhance environmental quality for all residents of the
United States.  The Agency’s goals are to ensure that:  (1) no segment
of the population, regardless of race, color, national origin, or
income, bears disproportionately high and adverse human health and
environmental effects as a result of EPA’s policies, programs, and
activities; and (2) all people are treated fairly and are given the
opportunity to participate meaningfully in the development,
implementation, and enforcement of environmental laws, regulations, and
policies. 

The TRI Program is an environmental information program.  While it
provides important information that may indirectly lead to improved
health and environmental conditions on the community level, it is not an
emissions release control regulation that could directly affect health
and environmental outcomes in a community.  The principal consequence of
today’s action will be to reduce the amount of detailed information
available on some toxic chemical releases or management.  However, as
pointed out in the previous discussion, the impacts will be very small
in terms of total national figures.  EPA believes that the data provided
under this rule will continue to provide valuable information that
fulfills the purposes of the TRI program.  By structuring Form A
eligibility for both PBT chemicals and non-PBT chemicals in a way that
favors recycling and treatment over disposal and other releases,
today’s rule encourages facilities to reduce their releases and
ensures that valuable information will continue to be provided to the
public pursuant to the purposes of section 313 of EPCRA and section 6607
of PPA.  Furthermore, only the non-PBT chemical portion of today’s
rule will have any effect on the reporting of chemicals released to the
environment.  The PBT chemical portion of this rule requires that
facilities reporting PBTs have no releases in order to be eligible for
Form A.  EPA does not have any evidence that this rule will have a
direct effect on human health or environmental conditions.  The Agency
has given careful consideration to the level of detail in the
information available to minority and low-income communities.  While
there is a higher proportion of minority and low-income communities in
close proximity to some TRI facilities than in the population generally,
the rule does not appear to have a disproportionate impact on these
communities, since facilities in these communities are no more likely
than elsewhere to become eligible to use Form A as a result of the rule.
 Results of the environmental justice assessment on the final rule are
available in the information docket.

6. Impact on state programs linked to TRI reporting requirements 

Topic Comment Summary (by Abt):

Four commenters wrote about impacts on state programs that would result
from the proposed rule.

Minnesota Pollution Control Agency wrote that in Minnesota, TRI data is
used in collecting revenue that funds direct pollution prevention
technical assistance to business and industry. Minnesota's pollution
prevention fee is assessed to TRI reporters based upon a combination of
the number of Form Rs submitted and the number of pounds released and
transferred off-site for treatment. The proposal would reduce
considerably the number of facilities required to submit Form R reports,
resulting in a significant reduction in revenue available for pollution
prevention technical assistance programs. Other states with similar
funding mechanisms for pollution prevention technical assistance that
will be affected by this proposal include Colorado, Maine, Massachusetts
and Mississippi.

Pennsylvania Department Labor and Industry also enforces a TRI fee for
reporting facilities, all of which is deposited into the restricted use
Hazardous Materials Response Fund. Ten percent of the fees are dedicated
to the maintenance of the hazardous chemical database, and the balance
is distributed by the Pennsylvania Emergency Management Agency to the
local emergency planning committees for their emergency preparedness
efforts. Should the alternate year reporting plan be implemented, this
fund will lose approximately $1.3M in revenues in the non-reporting
years, negatively impacting on the local emergency planning efforts.

Ohio Environmental Protection Agency wrote that it currently relies on a
filing fee to support the activities of the TRI program. If the proposed
changes are implemented, the amount of fees collected would be reduced
by approximately $50,000 (30%). Ohio EPA would be forced to reduce the
number of staff devoted to the TRI program, and reduce all programmatic
activities including compliance assistance and data quality activities.

Response: 

Although EPA acknowledges that State governments could lose revenues or
otherwise be impacted from the Phase 2 proposal, these costs are not
compliance costs associated with the rule. Rather, these are collateral
effects resulting from the rule's implementation and thus are not
subject to EO 12866. 

7. Comments on the value of TRI information 

Topic Comment Summary (by Abt):

Four commenters discussed the value of TRI information. The North
American Hazardous Materials Management Association wrote that EPA’s
burden analysis is overly narrow and incomplete. It focuses on reducing
the hours devoted to completing reports without any discussion of the
benefits associated with having the information contained in Form R.
Similarly, Great Lakes United wrote that TRI reporting provides benefits
to the respective corporation as well as to the general public.
Corporations can avoid costly litigation by maintaining transparent and
accurate records of their hazardous materials. Furthermore, corporations
should maintain a public record of hazardous materials in order to
provide their workers with information on occupational health risks
related to exposure to hazardous chemicals. 

An academic from the University of Wisconsin Green Bay, and Washington
State University Vancouver wrote that the TRI program was created by
Congress in 1986 to supply critical information to the public that could
not be obtained easily from any other source. EPA should carefully
consider the possible loss of utility to citizens, communities, and
states of any reduction in TRI data, and to compare that loss to the
value to industry in reducing burdens of data collection and reporting.
A 3-year study of the effects of TRI on corporate and community
decision-making, including two national surveys, found that in general
federal and state contacts had made good use of the TRI data while local
officials (primarily members of the Local Emergency Management
Committees or LEPCs) were much more likely not to have used the data.
Local officials showed some enthusiasm when asked whether they would be
likely to use the TRI in the future, especially if the database included
information more directly related to community health risks than is now
possible with TRI reports. Furthermore, just under half of the federal
and state officials had used TRI data to educate citizens about local
pollution problems. In sum, the TRI is indeed being widely used,
particularly by federal and state officials, and it has the potential
for even greater use. [See Document ID 900.1 for details.]

Another academic described a 2001 study (funded under an EPA STAR grant
to North Carolina State University), which found that in at least two
counties at the time of the study, public knowledge of and interest in
TRI information were very limited. Very few respondents in the two
counties surveyed demonstrated any knowledge of the TRI program or of
the TRI facilities in their area. When TRI information was directly
delivered to respondents, many did not even review it and virtually no
one who reviewed it took any action afterwards. Thus, although
increasing the reporting threshold would diminish the amount of
information provided to the public, the results of this study
demonstrate that only an extremely small portion of the public might
even notice it, much less care. Therefore, anecdotal comments from some
sources about the impact on public knowledge of lessening TRI
information should be tempered by the results of this unique empirical
study. [For more detail, including study results and discussion, see
Document ID 2158.1, p. 3 - 14.]

Response: 

The Agency appreciates the feedback about the value of TRI information
and has carefully reviewed public comment about the value of TRI
information to stakeholders. Within the time and resources available,
the Agency has evaluated and described both the extent of information
lost and the reduced burden of reporting TRI data in the development of
the final rule. It was not feasible, however, to estimate the dollar
value associated with the loss of TRI information. Thus a quantitative
comparison of the cost savings versus the value of information lost from
this rule could not be made. Nevertheless, in consideration of the value
of TRI information that would otherwise be lost, the Agency modified the
proposal to reduce the threshold of releases for the non-PBT portion of
the rule from 5000 lbs to 2000 lbs.

A. Benefits of information to public/press/academia not accounted for 

Topic Comment Summary (by Abt):

36 unique comments representing 41 commenters wrote that the benefits of
full Form R reporting to the general public, the press and academia are
not accounted for in EPA’s economic analysis. Many commenters said
that the long-standing and overwhelmingly positive benefits of EPA's TRI
program would far outweigh the small cost savings associated with the
proposed changes, if such an accounting were performed. Other commenters
discussed the hidden costs of this proposal: probable increases in
illness from environmental pollution, associated health care costs, and
the costs to regulators, local governments, and community organizations
to replicate missing TRI information. A professor from Dartmouth College
wrote that changing the rules will make policy making much more
unpredictable, and deny regulators and businessmen the information they
need to make decisions. Harrington Investments, Inc. wrote that the
proposal would certainly result in an increase in costs for investors
and the public. Investors would be deprived of vital information
necessary for accurate assessment of corporate performance, making
financial and investment decisions less sound. Taxpayers would be forced
to pay for the increased environmental and health impacts, resulting
from diminished powers of oversight. Thus, it's possible that although
the changes may alleviate paperwork costs for the EPA, they might
increase other enforcement costs.

Don't Waste Arizona, Inc. wrote that the proposal would shift the burden
away from the polluter to academia and to the public. The information
that is in the hands of companies that must report under the TRI would
take many hours for an academic or a community member to obtain and
analyze. Similarly, an academic from Duke University and Massachusetts
Institute Technology wrote that EPA's analysis of the usability of the
TRI data is flawed because it neglects critical impacts of the proposed
change on US citizens and researchers. EPA focused its estimates of the
impact of the rule on the number of pounds of chemicals that would be
reported, and fails to account for the fact that citizens and
researchers rely on TRI data to investigate facility environmental
performance, firm environmental performance, environmental exposure and
risks associated with residence in counties, zip codes, and census tract
(and other small geographic units). The proposed changes will eliminate
critical data on environmental performance making comparisons over time
infeasible. This will threaten the ability of researchers to identify
trends in toxics exposure and public health and would impair future
policymaking that relies on this type of research. Further, it would
undermine families' abilities to assess the risks that they face from
living near facilities that releases toxic chemicals. [See Document ID
2099.1 for results of analysis of 2002 TRI data.]

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI wrote that even if EPA's $7.38 million burden reduction figure
were correct, EPA values a human life at $6.5 million, so rejecting the
proposed rule would essentially pay for itself if the continued
reporting of the release data that would otherwise have been eliminated
under the proposed rule saved just one person from a premature death due
to cancer. Moreover, that EPA figure only represents the value of
premature death due to cancer, and does not reflect the broader range of
health care costs for other mortality and sublethal medical conditions
related to releases and use of toxic chemicals. For example, annual
health care costs for American children resulting from chemical
pollution has been estimated to be $54.9 billion, and that figure is
almost certainly an underestimate because it only looks at the costs for
four categories of illness: lead poisoning, asthma, cancer and
neurobehavioral disorders. In light of the enormous harm that chemical
use causes, and the potential benefit of TRI reporting to help combat
that harm, EPA's proposed reduction of reporting requirements is wholly
unjustified.

One commenter wrote that a study should be done comparing those costs
with the costs of clean up of Superfund sites before the TRI started.
Parents for Clean Air wrote that it should be obvious that if the
Proposed Rule does not adequately address the benefits of TRI reporting
requirements, not only to industry filers but also to the public, and
properly compare the current rule and the Proposed Rule benefits, then
the Proposal is not providing the public including industry with
adequate Notice, and therefore should be withdrawn or, at a minimum,
reproposed with all necessary record support and clarifications, in
accordance with Section 553(b)(3) of the APA. Therefore, as a procedural
matter alone, we submit that the Proposal is improper and illegal.
Section 553(b)(3) of the APA.

Response: 

The Agency acknowledges that TRI data are used and valued by a wide
variety of stakeholders and beneficiaries. To assess the extent of the
data loss under the Phase II proposal, the Agency has evaluated both
release pounds and total production related waste pounds from the
proposed option on a chemical by chemical basis. The Agency has also
evaluated the extent of the data loss through looking at zip codes for
both total and partial conversion from Form R to Form A.

While the Agency agrees that it would be beneficial to know how the
extent of this data loss impacts specific end users and beneficiaries of
TRI data, we disagree that the zip code and release and other waste
management pound data loss cannot provide a meaningful comparison of
burden reduction to data loss. These two measures provide a detailed and
quantified assessment of what TRI data become unavailable and where.
Moreover, TRI data do not completely become unavailable to endusers
where Form A substitutes for Form R. Form A retains facility information
as well as what chemicals are managed and released within a specific
range. The Agency has also reviewed public comment in its consideration
of burden reduction and data loss and modified the proposal to reduce
the threshold of releases for the non-PBT portion of the rule from 5000
lbs to 2000 lbs thus mitigating the extent of data loss and limiting the
loss of release information. 

B. Benefits of information to industry not accounted for 

Topic Comment Summary (by Abt):

Eight unique comments representing nine commenters wrote that EPA has
not accounted for the benefit that industry obtains from fully reporting
TRI data. Benefits cited include the setting of facility goals for
release reduction, an improved understanding of the costs and benefits
of dealing with toxic chemicals, a reduction in community complaints or
expressions of concern, and an increased capacity to identify needs and
opportunities for source reduction as well as to plan for emergency
management. The Group Against Smog & Pollution, Inc. wrote that such
benefits could actually be more important to smaller firms that have
less technical expertise and may not normally evaluate their toxic uses
and effects.

North American Hazardous Materials Management quoted Kirk Thomson,
Environmental Director for the Boeing Company notes, “It’s just a
good business practice to track your hazardous materials, how much
you’re using of each product, and how much you’re losing to the
environment.” This knowledge often spurs companies to make
improvements and reduce the production of harmful chemical wastes. This
in turn reduces their liability and often reduces their costs.

The New York State Department of Environmental Conservation wrote that a
reduction in the data release information will likely result in greater
uncertainty and inaccuracy in characterizations of chemical releases
(e.g., through inaccurate assumptions). This could actually increase
burdens on facilities that choose to correct such misinformation. 

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI wrote that EPA's justification for these first two changes is a
purported need to reduce the reporting burden for business. However,
EPA's own analysis of the changes indicates that the estimated burden
reductions for a given reporting facility are minimal: about $430 for
each non-PBT chemical and $790 for each PBT chemical. Even these low
figures, however, likely overestimate the burden reduction. Indeed,
according to EPA, 46 percent of the companies already potentially
eligible to use reduced reporting requirements do not do so, indicating
that business itself often finds full reporting beneficial rather than
onerous. 

Response: 

The Agency agrees that industry may benefit from TRI data and that there
may be some negative benefit to a company that chooses to file a Form A
instead of a Form R. The Agency notes that if the benefits to a company
of filing a Form R exceed that of a Form A, the company may elect to
file a Form R in lieu of a Form A. Beyond this, the extent of public
benefit is too speculative to attempt to quantify. 

8. Any other comments on the methodology and results from the analysis
as well as any data that the public feels would be useful in a revised
analysis 

Topic Comment Summary (by Abt):

Three commenters had additional comments not discussed above. The South
Carolina Department of Health & Environomental Control wrote that the
EPA, state partners, and industry filers have expended considerable
resources converting the submission and collection of TRI data to an
efficient electronic system that has become a model for other data
collections. The Burden Reduction Proposed Rule focuses exclusively on
the act of filling out paper forms in a world where computer and
interstate node technology is quickly replacing hardcopy. Achieving
burden reduction through electronic filing increases each year as more
companies access this ready-made process. However, EPA does not factor
this into the analysis of reporting burden reduction for this proposed
rule. [For details, see p.2-3, Document ID 2365] 

US PIRG Education Fund wrote that EPA has estimated that it will save
only $2 million every other year if it implements these changes, a tiny
fraction of the federal budget and the operating budgets of the
companies reporting to the program. Another commenter wrote that too
often we are making decisions based upon the shaky basis of Economics
rather than Science. If Economics could place a valid long-term value on
the environmental systems and living creatures living on our Earth
perhaps this would be valid, but Economics is too short sighted to place
realistic values on these things. 

Response: 

A commenter correctly observed that increases in electronic filing
through time is achieving burden reduction and that the Agency's burden
reduction estimates from the rule do not take this into account. For
example, the availability of TRI-ME reporting software is likely to
assist and streamline the reporting process. This could mean that the
Agency's Form R reporting cost estimates are overstated, and thus the
Agency's estimate of the cost savings associated with the rule also
could be overstated. 

While it is true that it is difficult to assign values to environmental
systems, it is not true that the Agency used only economics and did not
take into account science in its decision making process. The Agency
chose an option which limits the facilities potentially affected to
those with low levels of releases; EPA believes the burden reduction
outweighs the cost of less information. Furthermore, not all information
is unavailable to users since Form A retains information on what
chemicals are managed and released within a specific range. 

				

QUESTIONS ABOUT THE PROPOSED RULEMAKING

Summary of all comments submitted:

Four commenters posed questions about the proposed rulemaking, asking
for clarification and additional analysis on data loss.  One commenter
requested an analysis of Arizona TRI data describing the data loss
associated with the proposal (including changes to PBT, non-PBT, and
alternate year reporting), and the impact of the data loss on minority
households.  The commenter also requested an analysis regarding
frequency of program personnel changes both at the EPA TRI program
regional levels and at the facility levels to assess what programmatic
disconnects will occur because of a change in reporting frequencies.  

Senators Jeffords, Boxer, Wyden, Clinton, Obama, and McCain requested:

(1) A state-by-state list of the facilities that reported releases of at
least one chemical between 500 and 4,999 pounds in production related
waste in 2003, and their TRI releases, by chemical, to each
environmental medium.

(2) Of the facilities listed in response to question l, a state-by-state
list of any facilities that reported releases of chemicals that are
classified as known or probable (likely) carcinogens in EPA's Integrated
Risk Information System database or the US Department of Health and
Human Services National Toxicology Program's Eleventh Report on
Carcinogens.

(3) A state-by-state list of the facilities that reported at least one
chemical of up to 500 pounds of persistent, bio-accumulative
production-related waste in 2003, and their TRI releases, by chemical,
to each environmental medium. 

(4) A state-by-state list of facilities that reported at least one TRI
tracked chemical between 500 and 4,999 pounds in production related
waste in 2003 at greater quantities than the company reported in the
2000 TRI. Please indicate the percentage increase.

(5) A detailed breakout of EPA's burden reduction estimates and
associated savings gained through expanded use of Form A in light of
facility's continued need to track annual volumes of production-related
waste to determine eligibility for Form A.

Questions from the Columbia River Inter-Tribal Fish Commission included
the following regarding the PBT portion of the rule:

1) Please explain how EPA arrived at the conclusion "EPA believes that
communities and other users of TRI information are less concerned about
small volumes of on-site waste management when a facility is able to
achieve zero release of these chemicals." 

2) EPA plans to allow the use of Form A for PBT reporting if a facility
has a zero disposal and other releases on Form A.  Please clarify what
is meant in this context by "other releases."

3) How will EPA track releases of waste, in particular the PBTs, if
these quantities are reported as ranges rather than individual amounts? 
Has the U.S. EPA determined whether the cumulative loss of this level of
specificity and frequency in TRI collected data over time would be a
significant amount?

4) How will EPA or the public verify that PBT releases do not occur at a
facility if documentation (e.g. Form R Sections 8.1 and 8.8) of this
fact is not required?  Does EPA and public assume that the absence of
Form R indicates that these releases do not occur? What evidence does
EPA have to support the belief that certain eligible facilities would
indeed continue to use Form R (as part of public outreach) when Form A
is now an option?

5) The proposed rule states that a facility must have zero disposal or
other releases in Section 8.1 and 8.8 in order to qualify for the Form A
Eligibility.  Please clarify whether a Form A would be used if PBT
amounts are reported in Section 8.8 and whether these amounts are
considered releases to the environment.  In addition, will the
information on PBTs (i.e., Sections 8.1, 8.2 and 8.8), needed to make a
determination of Form A eligibility for a facility, be available to the
public and if not, why not?

6) In the section on PACs and Benzo(g,h,l) perylene, EPA emphasizes that
the treatment activities (e.g., burning) and standards (e.g., MACT)
employed by an eligible facility "could" result in negligible or zero
releases of these chemicals.  Are these reduction standards and
practices currently in place at each potentially eligible facility or
does this section refer to potential reductions?

7) Has EPA determined whether the cumulative loss of TRI data over time
(i.e., for lead, PACs, mercury and PBTs in general) would be a
significant amount under the proposed rule?

8) Will the proposed rule create a situation where additional data
sources must be accessed for information currently provided on TRI
forms?

9) Will interested parties be able to access the information no longer
reported under the proposed rule?

The Columbia River Inter-Tribal Fish Commission had two additional
questions regarding the non-PBT rule:

10) How did EPA arrive at the new ARA value of 5000 pounds per year and
why does the agency believe that it is appropriate to increase this
value?  Is the decision based on reducing reporting burden alone? 

11) For the non-PBT rule, what is meant by a "substantial majority of
total releases" and how does this finding provide support for the
proposed rule change?

A submission from the Attorneys General for NY, CA, CT, IL, IA, MD, MA,
NH, NJ, NM, VT, and WI requested further clarification and data
analysis:

1) Regarding lead reporters: EPA contends that the "most common
scenario" for lead reporters with zero releases but positive amounts of
other waste management quantities is that the reporters "send lead waste
offsite to a recycler."  EPA discusses no other "scenario" for this
category of reporters, and its analysis for this category of reporters
relies on the assumption that all of these reporters follow this
scenario.  EPA needs either to confirm that all of these facilities send
their lead waste to off-site recyclers or to add a discussion regarding
what facilities do with their lead waste if they do not send it to
off-site recyclers.  EPA also needs to address the fact that even if all
facilities do follow this practice today, they may not do so in the
future, undermining the support for the proposed rule. 

2) EPA calculates that, based on the 2002 TRI filings, 67,000 pounds of
lead recycling, or 0.0084% of all lead recycling, would no longer be
reported.  Though this is a small percentage nationwide, TRI is meant to
benefit individual citizens and local governments and first responders,
and the national figure says nothing about whether these lost pounds are
unevenly distributed, creating "blind spots" where reporting on
significant amounts of lead in a particular community would disappear. 
Nor does the national figure indicate whether the rule would create any
"black holes" where all or nearly all reporting of lead waste quantities
in a particular community would disappear.  The States are concerned
about each one of their communities, not just national averages.

3) EPA notes that "many" combustion units that may be used to burn PACs
may be subject to the Resource Conservation and Recovery Act or the
Clean Air Act, but does not claim that all are.  Unless EPA either
states unambiguously that all of these combustion units are covered by
these statutes or performs an analysis showing that incineration at
these units will not result in the release of PACs or
benzo(g,h,i)perylene, it should not promulgate the proposed rule.

4) EPA needs to perform localized analyses to determine whether the
proposed rule will create any "blind spots" or "black holes" with regard
to PACs.

Response to all comments:

For information about the extent of detailed Form R information that may
no longer be reported on Form R as a result of this rule, refer to the
economic analysis accompanying the rule.  The economic analyses for both
the proposed rule and the final rule have been placed in the docket for
this rulemaking.  This docket can be accessed at   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  under docket ID:
TRI-2005-0073.  Those interested in performing additional analysis
related to this rule should consider utilizing EPA’s Envirofacts ( 
HYPERLINK "http://www.epa.gov/enviro/"  http://www.epa.gov/enviro/ ) and
TRI Explorer (  HYPERLINK "http://www.epa.gov/triexplorer" 
http://www.epa.gov/triexplorer ) databases as well as other EPA
resources.  

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities.

As for comments related to modifying the TRI reporting frequency, while
EPA has preserved these comments, they are outside the scope of the
rulemaking to expand Form A eligibility and therefore EPA has not
responded to them as part of this rule.  

The response to the requests by six U.S. Senators has been posted on the
TRI website and can be accessed at   HYPERLINK
"http://www.epa.gov/tri/tridata/modrule/phase2/index.htm" 
http://www.epa.gov/tri/tridata/modrule/phase2/index.htm .  The response
can also be found in the docket for this rulemaking at   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  under docket ID:
TRI-2005-0073.

  

In response to requests for background information and in response to
specific questions about language contained in the proposed rule, EPA
refers commenters to the supporting materials for both the proposed rule
and the final rule.  The supporting materials have been placed in the
publicly accessible docket for this rulemaking.  This docket can be
accessed at   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov  under docket ID: TRI-2005-0073.  Commenters should
also refer to the TRI website (  HYPERLINK "http://www.epa.gov/tri" 
www.epa.gov/tri ) for additional information regarding this rule.

					

ADDITIONAL BURDEN REDUCTION ALTERNATIVES SHOULD BE CONSIDERED

Summary of all comments submitted:

1. Allow Form A for small PBT releases

Four commenters, including National Ready Mixed Concrete Association
(NRMCA), National Petrochemical and Refiners Association (NPRA), Edison
Electric Institute (EEI), and American Public Power Association (APPA),
recommended that some Form A allowable annual reportable amount be
established for PBT chemicals, especially lead and other heavy metals. 
APPA is concerned that a zero release test may be difficult or
impossible to meet if a PBT chemical exists in a raw material and it is
broken down during combustion to such minute amounts that it is
undetectable.  Suggested annual reportable amounts to be established for
PBT chemicals include 50 pounds (NPRA) and 1 pound (APPA).

2. Develop online reporting for Form R and/or Form A

Nine commenters, including National Ready Mixed Concrete Association
(NRMCA), and CA, MA, ME and NY state agencies recommended that EPA
develop and/or require online reporting for Form R and/or Form A as a
means of burden reduction.  One commenter suggested that moving on-line
will further reduce the amount of time and effort that facilities must
spend on the Form R and may obviate the need to move away from yearly
reporting.  OMB Watch stated that requiring companies to submit TRI
information electronically, either via the Internet or on computer disk
would streamline the process and free EPA resources to work more with
companies to resolve reporting problems and questions.

3. Improve TRI-ME software and/or reporting assistance

Six unique comments representing seven commenters suggested improvements
to the TRI-ME software and/or other reporting assistance to reduce
reporting burden.  Eastman Chemical Company and Onyx Environmental
Services recommend that EPA consider modifying the TRI-ME software to
advise users inputting the data into the database when they would
qualify for the use of the Form A and then prompt the user as to which
form they would like to submit.  If Eastman could bring its electronic
files created by our contractor software into TRI-ME and have TRI-ME
automatically differentiate between where a Form A is allowable and
where it is not, the company would seriously consider submitting Form As
for eligible chemicals.  Eastman stated that it is simply quicker and
easier to just generate all Form Rs.

One commenter suggested that EPA support the development of reporting
tools that not only help businesses report actual TRI information but
manage their material inventories more efficiently.  National
Environmental Trust (NET) stated EPA should consider working with
industry associations to provide comprehensive reporting guidance for
the industries most likely to be eligible for an expanded certification
threshold.  Developing simple and accurate calculation methods would
eliminate most of the work of reporting. OMB Watch stated TRI-ME could
be improved to allow companies to conduct their recordkeeping during the
year and streamline companies' ability to determine if they are eligible
for Form A filing by tapping into the tracked data with equations to
determine eligibility.  The software could include programs to insert
the tracked data into the calculations needed to estimate emissions and
disposals.

4. Create a "No Significant Change" form

Three commenters—American Petroleum Institute (API), General Electric
(GE) and National Mining Association (NMA)—support the creation of a
new form that would allow facilities to certify "no significant change"
(NSC) as measured against a designated baseline year.  API supported
using the production ratio or activity index (PRIAI) as a proxy for TRI
releases and transfers, for the purpose of making the NSC determination.
NMA urges EPA to make public the full explanation for the agency's
decision not to proceed with the "no significant change" option,
including any and all EPA assumptions as to monitoring workload,
baseline determinations, and any other assumptions relevant to the "no
significant change" option.  NMA further stated that the agency should
not limit a stakeholder group's agenda to the "alternate reporting year"
concept, but should allow that stakeholder group to consider the "no
significant change" alternative as well.

5. Higher Reporting Thresholds for a Category of Facilities or Class of
Chemicals with Small Reportable Amounts

Two commenters suggested EPA set higher reporting thresholds for a
category of facilities or class of chemicals with small reportable
amounts.  Performance Track Participants Association (PTPA) recommended
that EPA consider raising the reporting thresholds for those facilities
involved in EPA's National Environmental Performance Track (NEPT)
Program.  PTPA proposes establishing an alternative threshold of one
million pounds manufactured, processed, or otherwise used, with no
associated annual reportable amount, for NEPT facilities' eligibility
for submitting Form A. 

American Petroleum Institute (API) recommends EPA eliminate reporting,
set higher reporting thresholds, or limit reporting requirements for
Petroleum Bulk Stations and Terminals (SIC 5171, NAICS 424710).  For all
four reporting years for which these facilities had reported (1998
through 2001), releases reported by this sector were less than one tenth
of one percent of total releases reported under the TRI program.  TRI
data from 2003 show that, as for all other years in which terminals have
been reporting, releases for the sector were 0.07 percent of total
releases for all industries.

6. Exemption for Non-Isolated Intermediates

Two commenters, American Petroleum Institute (API) and General Electric
(GE), stated that EPA should create a TRI exemption for non-isolated
intermediates that would stipulate that they need not be counted toward
the "manufacturing" threshold.  Non-isolated intermediates are transient
substances that exist only at a point in time in a manufacturing
process.  API suggested that EPA could craft definitions or the
exemption itself so as to limit it to non-isolated intermediates that
are not released.

7. Provide Context for Chemical Releases

Two commenters stated EPA should provide more context for TRI chemical
release data. Waste Management Inc. is concerned with the TRI program
terminology that equates disposal in a permitted, engineered disposal
system with a "release to the environment" and suggests EPA explore new
ways of presenting TRI data that better differentiate between
uncontrolled releases to the environment and protective disposal in
engineered systems.  American Petroleum Institute (API) believes context
on sources of TRI chemical releases would result in burden reduction for
reporting facilities, as staff at reporting facilities field many varied
questions on chemical releases, from the public, the news media, and
government organizations.

8. Alter Reporting Requirements for Lead

Four commenters stated that EPA should restore the de minimis threshold
for lead.  Metals Industries Recycling Coalition (MIRC) commented that
such an alternative would greatly alleviate the enormous burdens
associated with tracking all of these potential sources of small
quantities of lead, while little meaningful information would be lost.
National Grain & Feed Association (NGFA) and Grain Elevator & Processing
Society recommend that EPA specifically exempt from reporting naturally
occurring lead salts found in trace amounts within some feed ingredients
used by animal feed manufacturers. These lead salts are not removed
during the feed manufacturing process nor released to the environment
except as part of a finished feed.  The Aluminum Association stated that
the burden of complying with TRI reporting for lead and lead compounds
falls most heavily on firms in the manufacturing sector, comprising 84%
of all reports in 2001 and that PBT lead reporting requirements give the
public an erroneous profile of lead exposure by including lead in alloys
in the reporting requirements.

9. Eliminate unused data elements

Five commenters, including Massachusetts Toxics Use Reduction Act
Program, Maine Department of Environmental Protection, NY Department of
Environmental Conservation, and Lowell Center for Sustainable Production
(LCSP) stated EPA should eliminate un-used data elements and further
simplify reporting forms as an alternative to the proposal.  Denver
Department of Environmental Health (DEH) stated that further
simplification of reporting forms could facilitate the goal of reducing
burdens on the regulated community without compromising the goals of
EPCRA.

10. Encourage Source Reduction

Three commenters stated EPA should encourage source reduction as an
alternative to the proposed rule.  One commenter suggested EPA offer
economic incentives for reusing industrial waste or advocating green
chemistry.  Delaware Department of Natural Resources and Environmental
Control (DNREC) and State and Territorial Air Pollution Program
Administrators (STAPPA) suggested that stronger encouragement be given
to the facilities for reducing or discontinuing use of TRI chemicals.

11. Remove 1,000,000 lb manufacturing/processing eligibility threshold

Two commenters stated that EPA should remove the 1 million-pound
manufacturing/processing eligibility threshold for the Form A.  SC
Johnson & Son, Inc stated facilities will still be required to document
the basis for their calculated transfers and releases to qualify for
Form A reporting status, regardless of the amounts of chemicals
manufactured or processed.  The Consumer Specialty Products Association
stated that the eligibility threshold discourages those companies above
the one million-pound threshold from reducing releases below the annual
reportable amount (ARA).

12. Other burden reduction-related comments

Twelve commenters had other burden reduction-related comments.  

US Department of Energy proposed that quantities recycled (sections 8.4
and 8.5) be excluded from both ARA and PRA calculations in order to
provide incentives to facilities to perform recycling activities and
offer calculation burden reduction.  As the recycling activities
reported in Sections 8.4 and 8.5 do not cause releases to the
environment, and releases due to its recycling are reported by the
recycler, exclusion of sections 8.4 and 8.5 from the ARA and PRA
calculations could provide an incentive to recycle toxic chemicals while
maintaining reporting by recyclers.  Likewise, Metals Industries
Recycling Coalition (MIRC) stated that recycling data should be
segregated more clearly on the Form R and that the reporting of recycled
amounts should be limited to the Pollution Prevention Act ("PPA")
portion of the form (Section 8).  As an additional burden reduction
measure, MIRC stated that EPA should revise the TRI reporting
instructions to exclude metals from the coincidental manufacture policy
or establish a de minimis threshold of one percent (1 %) for substances
that are coincidentally manufactured and end up in either a product or
waste stream.

The National Association of Manufacturers and Association Connecting
Electronics Industries (IPC) believe that facilities with zero releases
should not be required to report under TRI since they have no releases
to report.

Peabody Energy and National Mining Association (NMA) stated that EPA
should eliminate inconsistencies that the TRI accounts for, such as: the
fact that the de minimis exemption does not apply to the coal combustion
wastes that are used beneficially (e.g. road base, parking lot and
building base), the fact that facilities are required to report
chemicals that are coincidentally manufactured or the amount of a
chemical that is released through stormwater runoff, and the fact that
facilities are required to report the amounts of fertilizers used on
land undergoing reclamation, whereas surrounding farms that use the same
fertilizers do not have to report.

In addition, NMA urges EPA to keep its focus on science-based TRI
reforms and, in particular, on the need to find alternatives to applying
the PBT criteria to metals and metal compounds as the EPA Science
Advisory Board (SAB) nears completion of its review of screening
criteria. 

Cathy Cloutier and other representatives of the Delaware House of
Representatives suggest that EPA augment its coordination with local
environmental regulators and enhance its creative use of technology to
accurately capture, report, monitor and record emissions data. 
California Department of Toxic Substance Control (DTSC) urges EPA to
focus its burden reduction efforts on technological advances and
educational efforts, rather than reductions in information collection
and dissemination.  Florida Department of Community Affairs suggests a
moratorium on all EPA rule changes (that aren't court directed) for 1 or
2 years as a method to save millions in compliance costs for all
concerned.

American Public Health Association (APHA) and the Children’s
Environmental Health Network stated that burden reduction should be
considered only in terms of maintaining, if not expanding, the
information already provided.  OMB Watch supports a unified national
facility identification system that would make reporting easier for many
different programs.

Response to all comments submitted:

Some commenters provided suggestions on additional burden reduction
ideas that are outside the scope of this rulemaking to expand Form A
eligibility.  Specifically, comments ranged from suggestions for
improving the Toxics Release Inventory - Made Easy software otherwise
known as “TRI-ME,” and the electronic submission of reports to
comprehensive reporting guidance to the creation of a “no significant
change” certification to the exemption of non-isolated intermediates
from TRI “manufacturing” activity threshold determinations.  Still
other commenters suggested that EPA: (1)  provide more context
information along with the chemical release data; (2) allow the use of
the de minimis exemption for lead or exempt certain sources of lead from
TRI reporting altogether; (3) eliminate unused TRI data elements from
the reporting forms as an alternative to the proposed rule; (4)
encourage source reduction as an alternative to the proposed rule; (5)
limit recycling data elements to Section 8 of the Form R; (6) exclude
metals from the “coincidental manufacture policy” or establish a de
minimis exemption for coincidentally manufactured substances; (7)
relieve zero releasers from any TRI reporting obligation; (8) expand the
application of the de minimis exemption to specific industrial
activities; (9) find alternatives to applying the PBT criteria to metals
and metal compounds; (10) employ a unified national facility
identification system that would make reporting easier for many
different programs; (11) relax TRI reporting requirements for specific
sectors; and (12) focus burden reduction efforts on technological
advances and educational efforts instead of reductions in information
collection and dissemination.  While EPA has preserved these comments
and may consider them at a later date, these comments are outside the
scope of the rulemaking to expand Form A eligibility and therefore EPA
has not responded to them as part of this rule.

More directly related to this rulemaking to expand Form A eligibility,
some commenters recommended a non-zero release threshold (e.g., 1 pound,
50 pounds) for PBT Form A eligibility.  Commenters asserted that a zero
release test may be difficult or impossible to meet if a PBT chemical
exists in a raw material and the PBT chemical is broken down during
combustion to such minute amounts that it is undetectable.  Other
commenters suggested that EPA remove the one million-pound alternate
threshold for Form A eligibility.  Another commenter suggested that EPA
relax the Form A reporting requirements for facilities participating in
EPA’s National Environmental Performance Track (NEPT) program. 

For those commenters who believe a zero PBT release requirement is too
strict, EPA reminds these commenters that under current TRI reporting
guidance, facilities are already allowed to round small PBT chemical
releases to zero.  As discussed in the preamble to the PBT chemical
final rule (64 FR 58672, October 29, 1999), facilities are required to
report PBT chemical releases greater than 0.1 pound (except dioxins). 
In that preamble, the Agency stated that it believes that facilities may
be able to calculate their estimates of releases to one-tenth of a pound
and that such guidance is consistent with the requirements of sections
313(g) and (h).  While a higher PBT release level would provide
additional burden reduction, EPA believes that a zero release amount
under current TRI reporting requirements strikes an appropriate balance
between meaningful burden relief and the continued provision of valuable
information consistent with the goals and statutory purposes of the TRI
program.

With regard to comments about the one million-pound alternate threshold,
pursuant to EPCRA § 313(f)(2) the Administrator may establish a
threshold amount for a toxic chemical different from the amount
established by the statute.  42 U.S.C. § 11023(f)(2).    EPA has not
assessed alternatives to the one million-pound threshold as part of this
rulemaking.  Similarly, EPA did not specifically request comment on
creating a separate and distinct set of Form A eligibility requirements
for specific sectors or categories of facilities and EPA has not
analyzed such an approach to expanded Form A eligibility as part of this
rulemaking.

					

GENERAL COMMENTS RELATED TO ADDITIONAL TRI BURDEN REDUCTION 

1. Comments related to Phase 1 effort

Summary of Comments (by Abt):

Two commenters discussed Burden Reduction Phase 1 changes to the TRI
reporting requirements.  One commenter expressed opposition in
particular to the elimination of reporting of latitude and longitude. 
They indicated that exact location of emitters is of obvious importance
to tracking pollutants, and that it is simple for companies to determine
their latitude and longitude with readily available GPS devices.  The
American Public Power Association (APPA) expressed general support for
Phase 1, indicating that it would help reduce some of the redundant
aspects of reporting.

Response:

Comments on the Forms Modification rule are outside the scope of this
rulemaking.  The following background is provided as a courtesy to the
commenters.  As discussed in the preamble to the proposed rule, in an
effort to explore additional burden reduction opportunities, EPA
conducted a TRI Stakeholder Dialogue between November 2003 and February
2004.  A summary of this dialogue is available at   HYPERLINK
"http://www.epa.gov/tri/programs/stakeholders/outreach.htm" 
http://www.epa.gov/tri/programs/stakeholders/outreach.htm .  The
dialogue process focused on identifying improvements to the TRI
reporting process and exploring a number of burden reduction options
associated with TRI reporting.  As a result of the Stakeholder Dialogue
and subsequent comments from stakeholders, the Agency identified several
burden reducing options; one option being relatively minor changes or
modifications to the reporting forms and the TRI-ME software.  In July
2005, the Agency promulgated the TRI Reporting Forms Modification Rule
(70 FR 39931, July 12, 2005), otherwise known as “Phase 1,” which
streamlined the current forms by eliminating some fields and simplifying
completion of others.  The changes eliminated some redundant or
seldom-used data elements from Forms A and R, and modified others that
could be shortened, simplified, or otherwise improved to reduce the time
and costs required to complete and submit annual TRI reports.  The
changes also improved data consistency and reliability by replacing some
elements on the forms with information extracted from the EPA’s
Facility Registry System (FRS), which includes data on most facilities
subject to environmental reporting requirements across EPA programs. 
While EPA has preserved the comments submitted on the final Forms
Modification Rule and may consider them at a later date, these comments
are outside the scope of the rulemaking to expand Form A eligibility and
therefore EPA has not responded to them as part of this rule.

2. Comments on underutilization of Form A

Summary of Comments (by Abt):

Ten unique comments representing eleven commenters discussed the reasons
why Form A is underutilized, and encouraged EPA to take steps to
increase utilization.  The Michigan Department of Environmental Quality
suggested that facilities may not fully understand the criteria for Form
A, that the use of the TRI-ME reporting software reduces the time
required to complete either Form R or Form A, and that using Form R may
show that a company is a good corporate citizen.  GE Corporate
Environmental Programs recommends internally to its facilities to submit
only Form R reports because of the minimal difference in burden between
the two report types, the usefulness of the Form R versus Form A in
terms of data analysis over time, as well as concern with the Agency's
enforcement approach, with many companies deciding not to use Form A. 
Several industry commenters (National Federation of Independent
Business, Eastman Chemical Company, American Petroleum Institute, GE
Corporate Environmental Programs, Society of Glass and Ceramic
Decorators, Consumer Specialty Products Association, National
Association of Manufacturers, IPC - Association Connecting Electronics
Industries) agreed that EPA enforcement policy was a limitation in
increased Form A utilization.  These commenters all indicated that EPA's
current policy statement lacks clarity and availability to TRI reporting
facilities.  To encourage broader use of Form A, EPA should clearly
state in the preamble to the final rule that facilities who in good
faith incorrectly file Form A will face enforcement for incorrect
filing, not failure to report.  The Waterkeeper Alliance suggested the
EPA should expand its efforts in educating the regulated community on
the availability of Form A in its current context and encourage its use
to achieve burden reduction instead of changing the threshold.

Response:

With regard to comments submitted on the underutilization of Form A, the
Agency did consider as part of its decision-making process existing Form
A utilization.  Specifically, the Agency observed that only slightly
over half of the forms (54%) potentially eligible for Form A use take
advantage of that option.  The Agency believes there are a number of
potential reasons for this utilization rate, including the desire to
showcase pollution prevention efforts on Form R and the desire to
demonstrate good environmental stewardship.  Regardless of the factors
that prompt facilities to use Form R when they may be eligible for Form
A, the Agency does not believe the rate of Form A utilization is likely
to be significantly higher at a 5,000-pound ARA with a 2,000-pound
release limit for non-PBTs or at a 500-pound ARA with a zero release
requirement for PBTs than it has been to date at the 500-pound ARA
threshold for non-PBTs.

While EPA believes that this final rule approach to expanded Form A
eligibility strikes an appropriate balance between meaningful burden
relief and the continued provision of valuable information to the public
consistent with the goals and statutory purposes of the TRI program, EPA
also understands the importance of continuing outreach to improve data
quality and to promote consistent TRI reporting.  To date, EPA has
provided various forms of compliance assistance (e.g., guidance,
training sessions, a call center, a TRI Web site, reporting software) to
improve data quality and to promote consistent TRI reporting. 
Recognizing that there still is room for improvement, the Agency intends
to continue its outreach efforts to improve data quality through
reporting compliance.  

A number of commenters have expressed concern that the lack of a clear
EPA enforcement policy for the erroneous submission of Form A by
facilities acting in good-faith contributes to an unnecessarily low Form
A utilization rate.  These commenters believe that Form A will continue
to be underutilized unless and until the Agency widely clarifies its
enforcement policy among the regulated community.  Reporters should note
that on March 30, 2005, EPA issued a memorandum restating its
enforcement policy for reporters who submit a Form A in lieu of a Form R
when the reporters did not qualify for the alternate threshold reporting
exemption.  At all times since the alternate reporting threshold was
created, EPA enforcement policy has been to treat such a violation as a
Level 3 (data quality) violation.  However, when a person subject to
reporting fails to do so, that violation will be treated as a Level 1
(failure to report) violation, even if the person could have qualified
for the alternate reporting threshold and the report could have been
made on a Form A in lieu of a Form R.  The March 30, 2005, memorandum
and all other EPCRA Section 313 enforcement policy documents can be
found at   HYPERLINK
"http://cfpub.epa.gov/compliance/resources/policies/civil/epcra/index.cf
m" 
http://cfpub.epa.gov/compliance/resources/policies/civil/epcra/index.cfm
.

					

COMMENTS UNRELATED TO THE PROPOSED RULE 

1. Request for extension of comment period

Summary of Comments (by Abt):

Two commenters requested an extension of the comment period.

Response:

In response to requests for an extension of the comment period EPA
extended the comment period for the proposed rule from December 5, 2005
to January 13, 2006.

2. TRI and related environmental regulations should be
expanded/improved

Summary of Comments (by Abt):

245 unique comments representing 9,184 commenters stated that additional
TRI reporting should be required or TRI and other environmental
regulations should be strengthened.  Many comments stated that the
present system is working, but needs to be strengthened to improve the
quality and quantity of data, better enforce the requirements and/or
encourage pollution prevention.  Frequently cited reasons to strengthen
TRI and/or require additional reporting include:  problems with toxic
pollution in the aftermath of Hurricane Katrina, financial incentives
for manufacturers to identify non-toxic alternatives to TRI chemicals,
the importance of environmental information to the American democracy. 
One commenter also stated that more of this information should be made
available to the public so that choices about which companies to support
and which need to be pressured to reduce the harmful effect of their
pollution can be made.

Many commenters stated that TRI reporting should be required more
frequently.  The majority of such commenters suggested reporting every
six months, but weekly and real-time/immediate reporting were also
suggested.  One commenter stated that EPA should require reporting prior
to release.

A number of commenters suggested listing additional chemicals under TRI,
including other types of air pollutants, all known carcinogens, and all
“new” chemicals that do not yet have complete toxicological
profiles.  Pax World Funds suggested expanding TRI to include carbon
dioxide, which is increasingly recognized as a material risk factor by
financial analysts and fiduciaries.  American Public Health Association
(APHA) suggested increased reporting requirements for chemicals for
which human health information is incomplete.

Puget Sound Action Team suggested (1) defining as PBTs under TRI five
chemicals that are defined by Washington State as PBT chemicals and are
currently subject to TRI reporting, but not as PBTs; (2) decreasing
reporting thresholds for 5 other “chemicals of special concern” for
Puget Sound that are currently subject to TRI reporting, but not as
PBTs; and (3) expanding the list of chemicals subject to TRI reporting
to include 19 additional PBT chemicals defined by Washington State. (For
the lists of specific chemicals, see Document ID 2719.)

Several commenters suggested that EPA lower the TRI reporting
thresholds, generally suggesting a smaller releases threshold for Form A
eligibility (ranging from 250 pounds to 50 pounds).  One commenter
suggested lowering reporting thresholds for all PBTs.

Several commenters, including Environmental Defense, suggested
increasing enforcement efforts associated with TRI and imposing greater
penalties on facilities that provide inaccurate data to TRI.  One
commenter also stated that EPA needs to audit more businesses,
especially the smaller businesses.  Other commenters expressed the
general view that facilities are not currently reporting their releases
accurately; others advised EPA to require the reporting of spills and
accidents.  

A number of commenters stated that EPA should make industry support the
accuracy of their TRI reports.  Some checks on accuracy on reported
emissions would quickly increase the accuracy and thus the usefulness of
the data.  Checks by unbiased, neutral observers most likely would
reduce the number and size of future superfund sites.  This would be a
financial boon to both citizen consumers, companies who do not enter
bankruptcy and continue in business, and to the Federal Budget.  One
commenter stated that in some industries, such as electric utilities,
monitoring equipment allows highly accurate accounting of key effluents.
 It would be in the EPA's interest to find some way to connect estimated
emissions with directly measured emissions.  Denver Department of
Environmental Health proposes that EPA place greater emphasis on
increasing the accuracy of the release estimates for industries with
large potential releases.

One commenter suggested that reports of TRI annual releases include
reference to frequency or duration of the releases, relative toxicity,
as well as the public's exposure to the chemicals as the annual release
totals alone are not sufficient to assess the health or environmental
impact of the toxic chemicals released.  One commenter stated that the
TRI information should be made available at a deeper level by industry
sectors, ideally the six digit NAICS level.

Several commenters stated that TRI data reports should be released
sooner.  Denver Department of Environmental Health stated that earlier
reporting would result in greater understanding of chemical releases and
trends in a timely manner.  Waterkeeper Alliance stated that one of the
major obstacles within the TRI program is the nearly year-long lag time
between when TRI data is submitted by industry and when the public is
finally able to access it in its most useful form.  Environmental
Defense suggested that EPA release at least a preliminary TRI dataset
within 30 days of the data filing deadline.  As a mechanism for
achieving this goal they suggest the following protocol: (1) Mandate
near-universal electronic filing; (2) Dramatically curtail the
error-checking process; (3) Release a preliminary dataset, prior to
EPA's annual TRI report.

Montgomery County Health Department (and South Jersey Environmental
Justice Alliance) would like to see the program expanded to include
sources not now required to sample and report, such as landfills;
lowered levels of required reporting; and an expanded list of pollutants
that must be reported.  Other commenters stated that EPA should include
intensive livestock operations and landfills.

Great Lakes United stated that EPA should maintain and enhance the
Toxics Release Inventory and increase the long-term benefit to society
and protect public health through the following effort and improvements:

o Maintain and regularly update a comprehensive list of pollutants,
especially PBTs:

o Maintain lower reporting thresholds for facilities;

o Expand reporting sectors and facilities;

o Improve reporting of pollution prevention strategies;

o Improve mechanisms for verifying information submitted by facilities;

o For purposes of utilizing inventory data for research, increase
transparency in methodology to improve the ability of users to reconcile
differences in inventory data.

Several commenters suggested specific changes to Form R or Form A. 
National Environmental Trust stated that EPA should not even be
considering raising the certification statement threshold until it fixes
the Section 8 data quality problems (significant discrepancies between
Section 8 and Sections 5 and 6 on individual forms).  Another commenter
suggested that Section 6.2 of the TRI Form R (currently split between 2
pages) be placed on a single page with 3 entries per page for ease of
readability.  American Public Power Association commented that an
owner/operator should only report NA for Section 8.8 on the Form R if no
release or transfer occurred as a result of these activities.  OMB Watch
strongly recommends that the agency modify the current Form A
Certification to provide better information to the public, especially on
chemical releases and disposals.  Some enhancements EPA could make for
the Form A Certification include: (1) providing for range reporting; (2)
listing of percentage estimations of which media releases are discharged
to; and (3) disclosure of disposal methods.  Other commenters suggested
that the reporting process should generally be made more efficient.  

Troy Abel of University of Wisconsin Green Bay and colleagues stated
that EPA references the Form R data elements that are summed to
calculate the annual reportable amount (ARA) for non-PBT chemicals and
it would be useful if EPA made similar references to the Form R data
elements that correspond to the calculation of zero disposal or other
releases and those that would be summed to calculate the PRA (excluding
dioxins and dioxin-like compounds).  They also stated that based on a
3-year study of the effects of TRI on corporate and community decision
making, local officials would be especially likely to use the TRI in the
future if the database included information more directly related to
community health risks than is now possible with TRI reports.  In
addition, they stated that EPA may want to do more to make the data
understandable to broad audiences. Clear and meaningful information may
help increase public use of the data and help to ensure that any burden
that is felt is worth the time and effort.  [See Document ID 900.1 for
details.]  Several commenters stated that EPA should work to increase
the accessibility of TRI information, and the data should be presented
in language everyone can understand.  Another commenter stated that most
people don’t know how to access TRI information or where to find the
website and that more information from EPA for the public would be
helpful.

US PIRG Education Fund recommends EPA: (1) drop proposed changes to the
TRI program that would result in any loss of information; and (2) fill
the data gaps currently in the TRI program through expansion of TRI or
the creation of state-level programs. These gaps include facilities that
employ fewer than 10 employees, the exclusion of a set of
non-manufacturing industries (such as dry cleaners), chemicals released
in materials and consumer products, the tens of thousands of chemicals
not currently on the list of TRI chemicals, and other sources of
releases.

The AFL-CIO and several other organizations also suggested expanding the
list of covered chemicals, including chemical use, and additionally
suggested including worker exposure under TRI.

Several commenters suggested strengthening other environmental
regulations, including implementing restrictions against individual
burn-barrel habits endemic in rural regions, requirements that chemicals
can only be imported into the US from other countries where similar
laws/regulations exist, improvement of industrial filtration systems,
bans on lawn chemicals, bans of ammonia, bleach and all toxic fumes and
cleaning products, and testing and data collection requirements
regarding land-applied sludge.  

Response:

Numerous commenters provided suggestions outside the scope of this
rulemaking to expand Form A eligibility.  Specifically, some commenters
stated that additional TRI reporting should be required.  Some
commenters stated that TRI reporting should be required more frequently.
 Others suggested listing additional chemicals (e.g., carbon dioxide) or
changing the TRI reporting requirements for certain chemicals.  Several
commenters suggested increasing enforcement efforts associated with TRI
and imposing greater penalties on facilities that provide inaccurate
data to TRI.  A number of commenters asserted that EPA should place
greater emphasis on improving the accuracy of release estimates. 
Commenters also suggested ways for EPA to improve the presentation of
release information.  Others stated that the TRI data should be made
available in a timelier manner.  While EPA has preserved these comments
and may consider them at a later date, these comments are outside the
scope of the rulemaking to expand Form A eligibility and therefore EPA
has not responded to them as part of this rule.  Commenters advocating
more frequent TRI reporting, however, should note that pursuant to EPCRA
§ 313(i)(1) the Administrator may not modify the frequency of reporting
to be any more often than annually.  42 U.S.C. § 11023(i)(1).    

More directly related to this rulemaking, some commenters suggested that
EPA lower the ARA, generally suggesting smaller thresholds for Form A
eligibility.  Others advised EPA to require the reporting of spills and
accidents.  The National Environmental Trust (NET) stated that EPA
should not consider raising reporting thresholds until EPA fixes the
Section 8 data quality problems such as the discrepancies between
Section 8 and Sections 5 and 6 of Form R.  OMB Watch recommended that
the Agency modify the current Form A Certification to provide better
information to the public, especially on chemical releases and
disposals.  According to OMB Watch, some enhancements EPA could make for
the Form A Certification include: (1) range reporting; (2) listing of
percentage estimations of media to which releases are discharged; and
(3) disclosure of disposal methods.  

With regard lowering the ARA for Form A eligibility, as part of this
rulemaking EPA has not assessed alternatives that are smaller than the
500-pound ARA.  

As far as requiring the reporting of spills and accidents, for several
reasons, in the final rule EPA has decided to include section 8.8
quantities (i.e., quantities resulting from remedial actions,
catastrophic events, or one-time events not associated with production
processes) in the ARA threshold determination for non-PBT Form A
eligibility.  First, EPA agrees with many of the commenters that while
section 8.8 releases and other waste management amounts are not the
direct result of production-related activities, and therefore, are less
amenable to source reduction efforts, reporting on section 8.8
quantities provides important information on releases and other waste
management amounts in the same way reporting on production-related
releases and other waste management amounts informs communities. 
Second, EPA agrees with the American Petroleum Institute (API) that the
ARA for non-PBT chemicals should include section 8.8 waste management
information in order to create consistency between PBT and non-PBT Form
A eligibility.  Third, EPA does not expect the inclusion of section 8.8
quantities in the Form A threshold determination for non-PBT chemicals
to add a significant amount of burden to those facilities considering
Form A.  Less than 4% of all non-PBT chemical Form Rs have a value
greater than zero in section 8.8.  Accordingly, section 8.8 quantities
will not play any role in most Form A eligibility determinations. 
Further, because section 8.8 is restricted to quantities involving
remedial actions, catastrophic events, or one-time events not associated
with production processes, EPA does not expect section 8.8 quantities to
factor into any facility's Form A eligibility determinations on a
consistent, annual basis.

In response to concerns about data quality and consistency across the
Form R data elements, EPA has provided various forms of compliance
assistance (e.g., guidance, training sessions, a call center, a TRI Web
site, reporting software) to improve data quality and to promote
consistent TRI reporting.  Recognizing that there still is room for
improvement, the Agency intends to continue its outreach efforts to
improve data quality through reporting compliance.  Nevertheless, EPA
believes that the final rule to expand Form A eligibility appropriately
balances the provision of meaningful burden relief against the promotion
of pollution prevention and the requirement to provide the public and
other data users with valuable information that is consistent with the
goals and statutory purposes of the TRI program.

With regard to the suggestion that EPA modify the current Form A
Certification to provide better information to the public, especially on
chemical releases and disposals, EPA has not assessed specific
modifications to the content of Form A as part of this rulemaking.  

3. Questions on purpose of TRI/other questions directed at EPA

Summary of Comments (by Abt):

15 commenters submitted questions on the purpose of TRI or other
questions directed at EPA.  General questions were submitted, such as
how to submit comments, whom to contact with specific questions. 
Another commenter had specific questions about using TRI data: whether
earlier data for on-site air emissions include both fugitive and point
source emissions.  Two commenters asked about EPA’s response to an
American Chemistry Council (ACC) major Public Relations Campaign called
"essential2" which claims the TRI is not so essential.  Other commenters
requested information about unrelated topics, such as sewage levels at
the beach, and toxics used in lawn care, MTBE, and chemtrails.

Response:

Commenters should visit the TRI website to obtain information on a range
of TRI topics and to access TRI-related documents.  The TRI website is
located at   HYPERLINK "http://www.epa.gov/tri"  www.epa.gov/tri .  For
a broader range of environmental topics commenters may want to visit the
EPA website at   HYPERLINK "http://www.epa.gov"  www.epa.gov .  

4. Comments supportive of TRI overall

Summary of Comments (by Abt):

Sixteen unique comments representing 35 commenters made comments
supportive of TRI overall.  Many commenters stated that the TRI program
is working well and is generally considered among the most effective
environmental programs ever enacted.  Many commenters also stated that
the TRI program enables state and local regulatory agencies and private
citizens to obtain information about pollution in their communities,
enables policymakers and companies to make informed decisions about
development and use of natural resources and facilitates voluntary
cutbacks in pollution by industry.  

Senators Jeffords, Boxer, Wyden, Clinton, Obama, and McCain stated that
TRI information proved critical recently during the response to
Hurricanes Katrina and Rita as first responders relied upon TRI data to
pinpoint the facilities of highest concern for toxic releases.  The
commenters also stated that the volume of toxic material released
annually in the United States has fallen by an estimated 59 percent
since the annual disclosure requirement went into effect in 1988. 
Nevertheless, based on the most recent TRI data available, over 4
billion pounds of toxic chemicals are released into the nation's
environment each year, including 72 million pounds of recognized
carcinogens, from nearly 24,000 industrial facilities.

North Carolina Public Interest Research Group (NCPIRG) and other PIRGs
stated that according to an analysis of TRI data, releases to air and
water by the original TRI industries of carcinogenic chemicals declined
by 41 percent between 1995 and 2000. Developmental toxicant releases
fell by 47 percent, reproductive toxicant releases by 49 percent,
releases of suspected neurological toxicants by 31 percent and releases
of suspected respiratory toxicants by 23 percent.  They also stated that
time and again, industry leaders who are required to report their
emissions to TRI have publicly spoken out in support of the TRI program.
 The chemical industry in particular has praised the success and
intention of the program.  They also stated that communities across the
country have been able to use the information provided through the TRI
program to protect their health from toxic pollution, as evidenced by
the Working Group on Community Right-to-Know’s published list of
nearly 200 published reports using TRI data, most released by community
groups.

Michael Russo of University of Oregon stated that the TRI has offered an
invaluable tool for measuring environmental impacts and its use has been
refined over the years as researchers have learned how to use it.  

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI called attention to ways in which states use TRI data, including:
to improve and strengthen permitting programs; to identify enforcement
targets; to aid in emergency prevention planning; to undertake
environmental justice projects; to analyze toxic releases and risks; to
spur state pollution control legislation and regulation; and to target
technical assistance to TRI facilities. [See Document ID 4553 for
additional examples of uses of TRI data]

Response:  

EPA agrees with commenters that many stakeholders use TRI data in
efforts to protect the environment.  Accordingly, EPA has carefully
considered the thousands of comments submitted on this rule to ensure
that the final rule approach to expanded Form A eligibility continues
the provision of valuable information that is consistent with the goals
and statutory purposes of the TRI program.

 

5. Other

Summary of Comments (by Abt):

Eight commenters made other comments unrelated to the rule.  

The New Jersey Department of Environmental Protection believes that
there is an inherent lack of precision and accuracy in the existing TRI
data and cited a recent study by Environmental Integrity Project (EIP)
entitled "Who's Counting,” which estimated that petrochemical
facilities in Texas may be failing to report 15% of their total air
emissions to TRI.  In spite of this evidence, USEPA has failed to
improve monitoring and reporting requirements for these toxic air
pollutants, and in fact has weakened some federal monitoring
requirements.

Daniel Losquadro of Suffolk County Legislature requested that the Agency
hold two meeting dates on Long Island, one being in Suffolk County, to
provide Long Islanders with every opportunity to publicly voice their
opinions on the proposal.

One commenter wrote that the public also needs to know which industries
are meeting obligations to maintain healthful environmental conditions
in conjunction with their activities, to better support them and applaud
that industry's efforts.  Such a program would weaken the resolve of
those wanting to reduce TRI reporting requirements.

One commenter wrote that the EPA and other government agencies like the
NOAA should provide a website that is searchable by zip code for all
governmental information available on a specific region, including tidal
reports, air temperature, oil spills, nuclear effusion, etc.

One commenter wrote that more pro-business rulings by government
agencies will only make the typical American trust the government even
less than they already do.

One commenter asked, “Why is this called a public comment form if it
doesn't have any public choices on who the submitter was?”

National Environmental Trust (NET) wrote that it objected to putting the
TRI program in the Office of Environmental Information when that office
was created.  NET felt that OEI management would not have the commitment
to the program and experience dealing with industry's constant pressure
that OPPTS had, and also because it seemed like a bad idea to divorce
the TRI program from the people in OPPTS who actually use the data.  It
seems clear that this proposal came about because the leadership of OEI
allowed it to - exactly as had been feared when TRI became part of OEI. 
Immediately following this comment NET cited Inside EPA Weekly, December
9, 2005.  NET’s comment can be found in the docket for this rulemaking
at   HYPERLINK "http://www.regulations.gov"  www.regulations.gov  under
document ID: TRI-2005-0073-3810.1.

NET further wrote that while the TRI staff continued to shepherd the PBT
rule through the regulatory process begun under OPPTS, almost all of the
original OPPTS and even original OEI TRI staff has since left the
program, leaving us all to revisit the same proposals, but without the
EPA institutional memory.  The idea of expanding certification statement
eligibility is not new - it first surfaced back in 1997, but was
rejected by OPPTS and a multi-stakeholder TRI work group because of the
significant loss of data. The potential loss has increased since then
because of the additional industries reporting to TRI.  It appears that
there is also an increase in the Agency's willingness to trade public
data for what it perceives as industry burden reduction.  The idea that
EPA would even consider alternate-year reporting only bolsters the idea
that the program is no longer valued as much by OEI.

NET further wrote that this is particularly disappointing, because even
though OEI has done less and less with TRI (next to no public analysis,
no studies, no evidence of increased OEI use of the data), NET was under
the impression that the staff at least wanted to preserve the integrity
and expand the use of the data.  That does not now appear to be the case
-- especially since OEI claims to be surprised at the vehemence of
opposition to the proposed changes.

Response:

EPA recognizes the critical role TRI data plays in environmental
protection.  EPA has carefully considered the thousands of comments
submitted on this rule to ensure that the final rule approach to
expanded Form A eligibility continues the provision of valuable
information that is consistent with the goals and statutory purposes of
the TRI program.

 PAGE   

 PAGE   4 

