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The EPA Proposal

Stolen Inventory (California): The EPA Proposal

April 17, 2006

On September 21, 2005, the EPA announced its intention to roll back reporting requirements for all chemicals under the Toxics Release Inventory [EPA 2005a]. The rationale for this proposal was to reduce the reporting burden on industry, although it is notable that outside of EPA, there was no perceptible demand for the reporting changes that were proposed, nor were any presented along with the proposal. The EPA proposal has two major components:

  • Increase the amount of chemical releases that trigger detailed TRI reporting from 500 to 5,000 pounds per year. Specifically, chemicals released to the environment in amounts between 500 and 5,000 pounds could now be reported using the TRI short-form which requires only a statement that a certain amount of the material was handled, and that the amount did not meet the criteria for full reporting.
  • Eliminate annual reporting and replace it with reporting every other year.

The first proposal would eliminate reporting of hundreds of chemicals at thousands of facilities across the country. There is no rationale for this change offered other than a reduction in paperwork, yet it is hard to perceive the benefit calculation that accompanied this proposal, given the fact that major reductions in pollution have been derived from the simple act of filling out the forms that accompany TRI submissions.

Currently, if a company handles less than 10,000 pounds of a chemical there is no reporting required under the TRI. If a company handles more than 10,000 pounds but discharges less than 500 pounds of a chemical into the environment, the company can submit a one-page short form called Form A that does not require any information on environmental releases. If a company handles more than 10,000 pounds and discharges more than 500 pounds of a chemical per year, the company must submit a longer form called Form R, which reports detailed emissions, recycling and disposal information. The EPA proposal would raise this threshold for distinction between the less detailed short Form A and the more detailed Form R from 500 to 5,000 pounds of chemical discharges, substantially limiting the amount of pollution reported.

Under the law, EPA has the authority to revise reporting thresholds for chemicals on the list as long as these revisions still require reporting that constitutes a "substantial majority" of the total pollution associated with that chemical. In their objections to the proposed rollback, the attorneys general said the EPA's proposal is a clear violation of the "substantial majority" rule:

. . . EPA does not indicate whether or not it even followed any specific definition of "substantial majority" in its proposed changes, 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.46 But this is contrary to law, since the plain language of [EPCRA] requires an individualized analysis for each chemical.

. . . EPA did conduct a chemical-by-chemical analysis of the proposed rule's effects on reporting. That 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.

. . . 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. [Spitzer 2006]

The second proposed change could have a significant adverse effect on the quality and reliability of the data reported under the TRI. Under alternate year reporting, every other year of pollution would not be reported at all. There is clear evidence that pollution varies from year to year based on a number of factors including market demand for products and chemical supply and cost. Eliminating reporting every other year would substantially reduce the reliability of the information that is provided, and leave communities totally in the dark about 50 percent of the pollution in their communities.

The attorneys general argue that alternate-year reporting is a violation of EPCRA and provides a means for hiding information about chemical use:

Reporting companies could and no doubt do vary their chemical use and disposal practices from year to year, and thus data for one year may not be representative of data for the next year. In particular, alternate-year reporting would create an incentive for companies to shift their releases or other waste management activities into the off-years so as to avoid reporting requirements in the reporting years. This incentive could be particularly strong if EPA implements the changes in the proposed rule [from a 500-pound reporting threshold to 5,000 pounds]. A company might, for example, choose to make all of its releases of mercury or other nondioxin PBT chemicals in the off years so that it could file Form A in the reporting years. Thus, alternate-year forms showing no releases could be completely unreliable as a source of information about the risk the facility creates for the community. [Spitzer 2006]