Bush Administration Plan Would Erode Californians' Right to Know About Chemical Pollution in Their Communities
A Bush Administration proposal to roll back Americans' right to know about chemical hazards in their neighborhoods would let California industries handle almost 1.5 million pounds of toxic chemicals a year without telling the public, according to an investigation of federal data by Environmental Working Group (EWG).
Currently, the U.S. Environmental Protection Agency's Toxics Release Inventory (TRI) program requires industrial facilities to report the release, disposal, incineration, treatment or recycling of 650 chemicals covered by the law. Comprehensive TRI reporting is required for facilities that handle at least 10,000 pounds a year or manufacture 25,000 pounds per year, and discharge or dispose of at least 500 pounds per year of the listed chemical. But in September 2005 the EPA proposed sharply raising the detailed reporting threshhold so that only releases of at least 5,000 pounds would be reported, and reports would only be required every other year. Facilities that don't meet the threshold must only indicate that they use a chemical.
EWG's investigation of TRI data from 2003 found that the proposed EPA rollback would deal a crippling blow to Californians' access to information about toxic chemicals in their communities:
- The rollback would allow 384 industrial facilities in 37 counties to stop detailed reporting on the use or release of 1,449,479 pounds of hazardous chemicals a year. In Los Angeles County alone, 629,328 pounds of chemicals a year, from 160 facilities, would no longer be subject to reporting. In Contra Costa County, yearly reporting would be eliminated for 116,493 pounds of toxic chemicals; in Orange County, more than 116,079 pounds; in San Bernardino County, 101,198 pounds.
- The proposal would allow 101 California facilities to stop reporting any details of their use or release of toxic chemicals. These facilities would be allowed to handle 249,433 pounds of toxic chemicals a year without detailed public disclosure. In Los Angeles County alone, 44 facilities that in 2003 handled 93,975 pounds of chemicals would no longer be subject to detailed reporting.
- Chemicals for which reporting would be slashed or curtailed are among the most hazardous to human health. The rollback would end annual reporting in California of more than 64,000 pounds of ethylbenzene, 62,000 pounds of styrene, almost 30,000 pounds of benzene and more than 56,000 pounds of chromium and chromium compounds - all known or suspected carcinogens. It would also eliminate annual reporting for more than 11,000 pounds of chemicals that meet the EPA's criteria for persistent bioaccumulative toxins, or PBTs - chemicals that present the greatest threats to human health and the environment. [EWG 2006]
- Although the proposed rollback would reduce the total amount of chemicals used in California that must be reported to the TRI by less than 1 percent, reporting for many individual chemicals would drop sharply. All reporting would end for 13 different chemicals and reporting would drop by 10 percent or more for 30 chemicals.
The TRI is the nation's premiere pollution reporting and citizens' right-to-know program. It is widely recognized as the least controversial environmental program in the country and has been praised by industry and environmentalists as an effective way to increase chemical use efficiency and reduce waste and pollution. The TRI is the only source of chemical-specific information on industrial pollution at the individual facility level. It is an essential source of information for state and local governments and community activists nationwide.
Established in 1986, the TRI imposes no mandatory pollution controls on industry, but instead requires the reporting of estimated levels of release and disposal for 650 chemical compounds (less than one percent of chemicals registered for use in the U.S.) by some 23,000 facilities. This simple act of public disclosure is widely credited with spurring voluntary pollution reductions, with total U.S. chemical releases dropping 65 percent since 1989. [Hogue 2005]. A recent report by a dozen state attorneys general, including Bill Lockyer of California, cited striking reductions achieved by industry since the program began: Boeing Company cut its toxic chemical releases by over 82 percent; Monsanto cut its toxic air emissions by over 90 percent; and the Eastman Chemical Co. cut its releases of TRI chemicals by 83 percent. [Spitzer 2006.]
In January 2006, the attorneys general wrote to the EPA to protest the planned rollback, saying: "The proposed changes to the rule are not consistent with the purpose of TRI - to provide a maximum amount of information regarding toxic chemical use and releases to Americans - but directly contrary to the statutory purpose." The AGs said the proposed changes "violate the old saying: 'If it ain't broke, don't fix it.' " They said:
The changes would significantly reduce the amount of information about releases of toxic chemicals available to the public and as a result would impair efforts by federal, state and local governments, workers, firefighters and citizens to protect Americans and their environment from the harm caused by discharges of toxic chemicals to the air, water and land. In addition to being contrary to the public interest and sound policy, the proposed changes would violate the Emergency Planning and Community Right-to-Know Act, the Pollution Prevention Act, and the Administrative Procedure Act. [Spitzer 2006.]
About The TRI
In December 1984, thousands of people died following the release of methyl isocyanate, a chemical used to make pesticides, at a Union Carbide plant in Bhopal, India. This tragedy was followed by the disclosure one month later that the same chemical had leaked at least 28 times from a similar Union Carbide facility in Institute, W.V. Eight months later, 3,800 pounds of leaked chemicals from the same Institute plant sent dozens of injured people to local hospitals [NYT 1985a, NAP 1989a].
Following the tragedy in India and the realization that a similar disaster was possible in the United States, Congress passed the Emergency Planning and Community Right-to-Know Act (EPCRA) in 1986 as Title III of the Superfund Amendments and Reauthorization Act (SARA). This legislation requires manufacturing facilities handling toxic chemicals to have emergency plans and coordinators in place in case accidents occur. Additionally, it requires facilities to inform communities and local authorities about the hazardous chemicals handled. Finally, the Act requires facilities to publicly report their chemical waste and emissions, a provision under Section 313 of the Act known as the Toxics Release Inventory (TRI) [EPA 2004a, EPRCA].
The TRI has become the nation's premiere right-to-know law. It is one of the most widely praised and successful environmental programs for industry, environmentalists, and the public. Each year, companies across a wide range of industries (including chemical, mining, paper, oil and gas industries) that produce more than 25,000 pounds or handle more than 10,000 pounds of a listed toxic chemical must report it to the TRI. When the TRI first when into effect, the threshold was 75,000 pounds annually. If the company treats, recycles, disposes, or releases more than 500 pounds of that chemical into the environment (as opposed to just handling it), then they must provide a detailed record of its use and environmental fate.
In 1990 the TRI was expanded with passage of the Pollution Prevention Act to include data on chemical quantities and practices involved in source reduction and recycling. In 1993 President Clinton issued an Executive Order in response to an evaluation of TRI by the General Accounting Office, which further expanded the program to require reporting from federal facilities [EPA 2002c]. EPA then reduced certain reporting requirements in 1994 when it established a system of different forms to be submitted for different levels of chemical releases [EPA 1994a]. Larger releases now require more detailed reporting, while smaller releases require more basic reporting.
In 1997 TRI was again expanded when EPA mandated more complete data on emissions from incinerators, and required TRI emissions reporting from additional industries not previously included: metal and coal mining, commercial electric utilities that use coal or oil, commercial hazardous waste treatment facilities, petroleum bulk terminals and plants, chemical and allied product wholesalers, and solvent recovery services [EPA 1997a].
The TRI imposes no pollution controls on industry, but instead requires facilities to report estimated levels of pollution and disposal for a list of 650 chemical compounds - less than one percent of chemicals registered for use in the U.S. This simple act of public disclosure has been undeniably beneficial for industry, the public, and the environment by:
- Producing broad reductions in emissions for scores of major air and water pollutants;
- Generating more efficient use of chemicals by industry;
- Helping to identify and prioritize chemicals of potential concern;
- Measuring progress toward chemical management goals;
- Delivering important information on pollution to communities near industrial facilities.
With annual emissions reporting from over 23,000 industrial and federal facilities, the TRI is credited with dropping the total releases of chemicals from all sources by 65 percent since 1989 [Hogue 2005]. It has also provided a foundation of solid facts to inform and drive policy advances, planning and citizen action at the national, state, and local levels.
In a 2003 report, the EPA listed two dozen state governments that rely on the TRI program for emergency planning, environmental targeting, risk assessments, standards, legislation, and quality assurance and control [EPA 2003a]. The state attorneys' general report said the TRI is also essential information for firefighters and local governments, for scientists, labor unions, investment advisors, even the Internal Revenue Service.
But nowhere has the TRI been more important than in the fight for environmental justice by grassroots communities - especially "fenceline" neighborhoods adjacent to chemical facilities. In the words of the attorneys general: "TRI data is the tool that proves the need for environmental justice at the national and local level." [Spitzer 2006]. Throughout California, TRI data has been a key tool that has empowered diverse communities to take action against toxic chemical hazards:
- In Los Angeles, Communities for a Better Environment (CBE) used TRI data to show that more than 80 percent of facilities that release toxic chemicals in L.A. County were located in areas where a large majority of residents were people of color. Among the results: Three industrial recycling facilities relocated to more appropriately zoned areas, and the South Coast Air Quality Management District adopted environmental justice guidelines to ensure that diverse community voices are included in planning and regulatory decisions. [NIEHS 2005]
- In Richmond, the West County Toxics Coalition and CBE used the TRI to investigate refineries and other industrial polluters. The group published a report identifying the area's 20 largest polluters, naming a Chevron refinery as the worst. The report brought the oil company to the table for discussions that led to Chevron's agreement to close down older portions of the plant and install equipment to achieve zero emissions from an expansion. [EPA 1998]
- In the Ventura County community of Frasier Park, Concerned Residents of Lockwood Valley fought to get Pacific Custom Materials, a clay mine and cement kiln, report its emissions from burning diesel fuel to the TRI. They then used the data to force state and county regulators to crack down on the plantÕs nitrogen and sulfur pollution, to institute real-time online emissions reporting, and bring a health damages lawsuit against the company, recently settled for an undisclosed amount. [Swan 2006]
- In West Oakland, the Chester Street Block Club Association, Citizens for West Oakland Revitalization and Greenaction used TRI data in a campaign against Red Star Yeast, whose plant was emitting tens of thousands of pounds of acetaldehyde, a carcinogen, and other toxic chemicals into the neighborhood's air. The community pressured authorities to investigate and fine Red Star for pollution violations and fought against renewal of the plant's operating permit, prompting the company to shut down the facility. [DeFao 2003]
Not surprisingly, the TRI is popular with the public, as demonstrated by public responses to government proposals to roll back the program in the past. The TRI's popularity is consistent with findings from public opinion polls showing that the public considers access to pollution information to be a basic right [Mellman 1999a].
The EPA Proposal
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]
Chemicals of Concern
The chemicals for which reporting would be slashed or curtailed by the EPA's proposed rollback are among the most hazardous to human health.
- Benzene. The rollback would end reporting in California of annual use or release of more than 163,000 pounds of benzene, ethylbenzene and other benzene compounds and benzene compounds from 88 facilities. Benzene is widely used to make other chemicals such as Styrofoam, dyes, detergents, drugs, pesticides, and chemicals used in nylon and other synthetic fibers. It is also found in crude oil, gasoline and cigarette smoke. Benzene is a known human carcinogen, causing leukemia and possibly non-Hodgkin's lymphoma and multiple myeloma. Benzene has also been linked with non-cancer health conditions such as anemia, central nervous system depression, and other nervous system effects. [ATSDR 2005] (More about benzene)
- Toluene. The EPA proposal would eliminate reporting of use or release of 86,000 pounds of toluene and toluene compounds from 46 facilities in California. Toluene is used to produce benzene and as a solvent in paints and coatings, adhesives, inks, cosmetics, cleaning solutions, and organic reactions. Long term exposure to toluene-contaminated drinking water may cause serious nervous system disorders, including spasms, tremors, speech impairment, and memory, hearing, vision and coordination loss; it may also cause liver and kidney damage [USEPA 2002a]. Chronic exposure to toluene may also cause skeletal muscle disease, and studies in laboratory animals show that toluene can alter reproductive hormone levels and cause decreased sperm counts. [ATSDR 2005] (More about toluene)
- Chromium and chromium compounds. The rollback would end reporting of more than 56,000 pounds of chromium and chromium compounds, from 30 California facilities. An unknown amount of this is the highly toxic chromium-6, a known human carcinogen. Chromium-6 exposure has also been linked to lung cancer, chromosome aberrations and damage to the pharynx, larynx, kidney, heart and liver. Chromium-6 contaminated drinking water in Hinkley, Calif., was the basis of the movie "Erin Brockovich." In real life, a lawsuit by Hinkley residents against Pacific Gas & Electric Co. resulted in the largest legal settlement in U.S. history, $333 million. [ATSDR 2005] (More about chromium. More about chromium compounds)
The most hazardous chemicals in the TRI, including DDT, PCBs, dioxins and lead, are persistent bioaccumulative toxic chemicals (PBTs), which are defined as compounds that "possess toxic properties, resist degradation, [and] bioaccumulate" [Stockholm 2004]. Different national and international treaties define specific properties in different ways, but for the Toxics Release Inventory (TRI), the EPA uses the following criteria [EPA 1999a]:
- Possesses a degradation half-life (the time it takes for half of the chemical to break down in water, soil, or river sediments) of two months or greater. This rate of degradation means that the chemical will persist for at least one year in the environment. Airborne chemicals must possess a degradation half-life of 2 days or more, meaning that they last in the air for about 12 days.
- Bioaccumulates in the tissues of organisms either through exposure to the chemical in the environment (bioconcentration) or through uptake in food (bioaccumulation). The EPA has created a number of tests to measure bioaccumulation. If these tests show that a chemical accumulates at levels 1000 or greater times in an organism's tissues compared to environment or food levels, the chemical is considered to bioaccumulate.
- Is reasonably anticipated to cause serious or irreversible chronic human health effects at relatively low doses or ecotoxicity at relatively low concentrations.
PBTs are so hazardous that they are the only group of chemicals to be banned on a global scale by international treaty. The Stockholm Convention on Persistent Organic Pollutants which came into force in May 2004, bans or severely restricts the 12 most harmful. Under the PBT provisions, any facility that handles 100 pounds of a persistent and bioaccumulative chemical or just 10 pounds of a very persistent and very bioaccumulative chemical - a chemical that meets international guidelines for banning - is subject to full reporting of pollution and disposal. Dioxins are so toxic that companies handling more than 0.1 gram are subject to fully reporting (nationwide, only about 285 pounds are disposed of or emitted annually).
The stricter PBT reporting requirements are, for the most part, not included in EPA's proposed rollback. But EWG has identified five chemicals already covered by the TRI that meet the EPA's own criteria for classification as PBTs, yet have not been made subject to the more stringent reporting rules. [EWG 2006] Two of these chemicals are among those for which all detailed reporting would be curtailed in California, because all of the facilities that reported releases in 2003 were under the 5,000-pound threshold.
- DEHP. The rollback would end all reporting in California of releases of 8,588 pounds of di(2-ethylhexyl) phthalate, from six facilities. In laboratory animals, fetal exposure to DEHP causes significant developmental toxicity, especially of the male reproductive tract. In adult animals, DEHP causes toxicity to the reproductive organs, adrenal, liver, and kidney. In humans, exposures to DEHP in polyvinyl chloride plastic used in medical applications are of concern, especially for infants and toddlers [Kavlock 2002]. DEHP was found in the blood of more than 95 percent of 2,800 people tested by the Centers for Disease Control in 2001 and 2002 [CDC 2005]. (More about DEHP)
- 1,2,4-Trichlorobenzene. The rollback would end all reporting in the state of releases of 2,756 pounds of 1,2,4-trichlorobenzene, from two facilities. The compound is used as a dielectric fluid, solvent, lubricant, degreasing agent, cleaning solution additive and wood preservative, heat transfer medium and as an intermediate in the manufacture of dyes, polymers and herbicides. Short-term exposure to drinking water contaminated with 1,2,4-trichlorobenzene can cause damage to the liver, kidney and adrenal glands [CalEPA 1999]. Long-term exposure may cause adrenal damage, and laboratory animal studies show that high doses cause liver and lung tumors as well as damage to the kidney, thyroid and spleen. [EPA 2006] (More about 1,2,4-Trichlorobenzene)
EPA's TRI rollback would eliminate reporting of pollution with persistent biocumulative toxic (PBTs) chemicals at 8 facilities in California
pounds in 2003
|Alflex Corporation||Long Beach, CA||DEHP||1,010|
|Alshin Tire Corp||Rancho Cucamonga, CA||DEHP||755|
|Ameron International Lining Group||Brea, CA||DEHP||3,629|
|Ashland Distribution Co||Carson, CA||DEHP||790|
|Dupont Ekc Technology||Hayward, CA||1,2,4-Trichlorobenzene||1,958|
|International Coatings Co||Cerritos, CA||DEHP||794|
|Metal Coaters Of California||Rancho Cucamonga, CA||1,2,4-Trichlorobenzene||798|
|Solvay Draka Inc||Commerce, CA||DEHP||1,610|
Source: Environmental Working Group. Compiled from 2003 Toxics Release Inventory.