January 13, 2006 Ms. Linda Travers, Acting Assistant Administrator Office of Environmental Information Environmental Protection Agency Mail Code: 28221T 1200 Pennsylvania Avenue, NW Washington, DC 20460 Attn: Docket ID No. TRI-2005-0073 Re: Toxics Release Inventory Burden Reduction (Phase II) Proposed Rule; EPA Docket TRI-2005-0073; 70 Fed. Reg. 57822 (Oct. 4, 2005) Dear Ms. Travers: The Office of Advocacy of the U.S. Small Business Administration is submitting these comments on the Environmental Protection Agency's (EPA) Toxic Release Inventory (TRI) Burden Reduction (Phase II) proposed rule. Advocacy strongly supports the EPA proposal which provides significant paperwork burden reductions for small business reporters while maintaining the full integrity of the TRI database. In 1991, the Office of Advocacy (Advocacy), by petition, initiated the rulemaking process that resulted in the promulgation of the Form A.1 We are pleased that EPA created this form in 1994, which the agency estimated would result in several hundred thousand hours in annual paperwork savings. The Form A is essentially a short form version of the Form R, analogous to the IRS forms 1040 and 1040EZ, and just as with the tax forms, the short form is only available to a subset of filers with relatively uncomplicated filings. However, the current Form A is only available to a narrow subset of the reports and Advocacy applauds EPA for pursuing an expansion of eligibility for non-persistent bioaccumulative toxic (non-PBT) chemical filers from 500 to 5,000 pounds of "annual reportable amount" (ARA).2 Further, Form A is currently unavailable to thousands of PBT chemical reporters. Advocacy endorses EPA's preliminary decision to extend Form A filing to PBT filers with zero total releases and less than 500 pounds (PRA).3 Advocacy was established pursuant to Pub. L. 94-305 to represent the views of small business before Federal agencies and Congress. Advocacy is an independent office within the U.S. Small Business Administration (SBA), so the views expressed by Advocacy do not necessarily reflect the views of the SBA or the Administration. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), gives small entities a voice in the rulemaking process. The RFA requires Federal agencies, such as the EPA, to consider alternatives to avoid overly burdensome regulation of small entities.4 Advocacy is also required by Section 612 of the RFA to monitor agency compliance with the RFA.5 On August 13, 2002, President George W. Bush signed Executive Order 13272, requiring Federal agencies to implement policies protecting small businesses when writing new rules and regulations.6 Executive Order 13272 instructs Advocacy to provide comment on draft rules to the agency that has proposed a rule, as well as to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget.7 Executive Order 13272 also requires agencies to give every appropriate consideration to any comments provided by Advocacy. Under the Executive Order, the agency must include, in any explanation or discussion accompanying publication in the Federal Register of a final rule, the agency's response to any written comments submitted by Advocacy on the proposed rule, unless the agency certifies that the public interest is not served by doing so.8 Introduction In April 2004, the Office of Advocacy released a report by Jack Faucett Associates (JFA) that researched a number of reforms to the TRI program that would achieve the dual goals of streamlining reporting requirements, and preserving the integrity of TRI data. The report sought to identify reform proposals that would retain the Form R where needed to ensure the availability of useful public information while reducing burdens by moving reports of minimal interest to alternative reporting, such as the Form A. Among the recommendations made by that report was an expansion of Form A eligibility to a greater universe of current non-PBT filers, including consideration of a 5,000 pound annual reportable amount (ARA) threshold. Additionally, the report recommended expanding Form A eligibility to PBT filers under certain conditions. Advocacy is pleased that EPA chose to propose a rule that reflects some of the recommendations in that report, ensuring that small business will benefit from the reduction in paperwork requirements, and making TRI reporting more efficient for the reporters and data users. EPA estimates the total annual cost savings of the proposed rule from the PBT and non-PBT Form A expansion at $7.4 million.9 However, 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.10 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.11 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.12 In October 2004, E.H. Pechan and Associates, Inc. (Pechan) completed a study for Advocacy that assessed a number of possible TRI reform proposals using a risk-based analytical method that married the EPA TRI database to the EPA Risk Screening Environmental Indicators (RSEI) Chronic Health Model.13 The Pechan report expanded upon the earlier JFA report by performing a more significant analysis on the identified reform proposals that examined effects on data quality and health risks to local communities in addition to burden reduction. The Pechan report endorsed a number of reforms, including an expansion of the Form A non-PBT threshold and the extension of Form A filing to a limited set of PBT reports. As discussed below, this report provides a health-based benchmark that validates the approach taken in the EPA proposal. TRI Proposal Permits Greater Use of Form A Without Sacrificing Access to Data Use of the Form A under EPA's proposal is designed appropriately for facilities that are zero or micro-releasers. EPA's reform proposal will still require detailed data for the reports that account for 99.9% of the production-related waste data.14 The establishment of Form A in 1994 successfully preserved access to information by allowing the use of a simpler form. The current proposal extends the same benefits to a larger number of facilities. The Form A will continue to inform communities. With respect to the potential use of TRI data by emergency responders, the TRI data was designed only to inform the public about the risks to the community from the annual "releases".15 There is no relationship between the annual production-related releases from a factory and the environmental releases when a tank ruptures in the event of a hurricane, for example. Emergency responders want to know the identity, quantity and location of the chemical inventories, not the magnitude of annual releases. In contrast, the chemical inventory data reporting requirement, established in the same 1986 Emergency Planning and Community Right-to-Know Act (EPCRA)16 as the TRI, provides the identity, quantity and location of chemical inventories directly to state and local officials, and was designed specifically for the emergency responders. Indeed, local fire departments in the western Boston suburbs recently said that they rely on the chemical inventory data, not the TRI.17 EPA's current proposal does not affect the chemical inventory data used by first responders. The Proposed 5000 Pound Threshold for Non-PBT Chemicals Is Based on a Review of 2002 Data Using the 1994 Final Rule Approach The EPA is proposing to expand the Form A non-persistent, bioaccumulative, and toxic (non-PBT) annual reportable amount (ARA) threshold from the current 500 pounds to 5,000 pounds. EPA's choice of the proposed 5,000 pound non-PBT ARA threshold is based on several considerations that were first identified in the determinations made in the 1994 final rule establishing the Form A (59 Fed. Reg. 61488, November 30, 1994). As such, EPA is only recalibrating the 1994 ARA to a higher threshold, based on a review of more current data (2002, instead of 1992). In 1994, the Form A, and the 500 pound threshold, were justified on the following three bases: (1)Chemical reporting on a substantial majority of the releases is maintained with the Form A; (2)Little production related waste information (approximately 0.1%) will be excluded from Form Rs; and (3)Each Form A would provide the public with a range report, that informs the public that total releases, as well as total production related waste is below a certain threshold.18 EPA used the same three criteria in determining and justifying the new 5,000 pound threshold. EPA asserts a strong factual and legal foundation for the new revisions by using the 1994 approach. An examination of how the above three findings apply to the new 5,000 pound threshold indicates the following. With regard to the first finding, chemical reporting on a substantial majority of releases is maintained by requiring the Form A certification as part of the reporting, just as in 1994.19 With regard to the second finding on the new threshold, Table 3 of the preamble to EPA's proposal shows that 99.9 percent of total production-related wastes will still be reported via Form R, even if all the eligible Form R non-PBT reporters switch to use of Form A.20 The 5,000 pound threshold is simply a recalibration of the 500 pound threshold from 1994, based on the large number of new chemical reports introduced since 1994 and the continuing reduction in wastes handled by facilities. With regard to the third finding, Form A provides the identical range report information that the total production related waste is below a certain threshold. See Table 1 below for a comparison of the 1994 final rule and the 2005 proposal. Table 1. Comparison of 1994 Form A Final Rule and 2005 Form A Proposal 2005 2005 1994 Final EPA Criteria Proposal Proposal Rule 500 5,000 lbs 500 lbs lbs Non-PBT Non-PBT PBT Substantial Majority of Yes Yes Yes Releases Captured 99.9 percent of Waste Yes Yes Yes Data on Form R Form A - Range Report Yes Yes Yes between Zero and Threshold Amount Office of Advocacy Supports EPA Proposal to Increase Non-PBT Form A Reporting Threshold to 5000 Pounds The change to a 5,000 pound reporting threshold would have little impact on the risk profile of chemicals reported on Form Rs. E.H. Pechan & Associates used a health risk-based analysis that takes into account chemical toxicity and affected population as well as volume of chemicals released (described earlier in this letter). The methodology, which relies on the use of EPA's Risk Screening Environmental Indicators (RSEI) model, greatly enhances the ability to determine the value of TRI reports by measuring how risk levels change as reports are moved from Form R to Form A.21 The methodology computes the RSEI risk score associated with all TRI reporting facilities nationwide, using a variety of non- PBT reporting thresholds. By comparing these risk scores, it is possible to characterize the importance of the loss of Form R information associated with raising the ARA threshold. The Change in Form A Reporting Threshold Will Not Have a Significant Impact on Right to Know at the Local Level The true measure of impact however is whether such revisions represent significant changes in risks at the local level. To assess the local impact of alternative approaches on reported risks, in 2004 Pechan performed a risk score analysis for the 20 "worst case" counties using 2000 TRI data. Specifically, Pechan reviewed the RSEI score results for the top 20 U.S. counties (of 3,142 counties) experiencing the greatest change in RSEI scores from increasing the non-PBT ARA threshold (Pechan, 2004). Under the 5,000 pound threshold only one county, Cook County, Illinois, accounted for more than 5 percent of the total national change in risk score (with 6.7 percent of the total). Four other counties had between 2 percent of the total and 5 percent of the total and all other counties had less than 2 percent. The top 20 counties accounted for 42.8 percent of the total national change in Form R reported risk score. The results under the 2,000 pound threshold were qualitatively similar, with the top 20 counties accounting for 43.1 percent of total national reported risk change and no single county accounting for more than 5 percent.22 Under either threshold scenario, for 99 percent of all of the nation's 3,142 counties the changes in reported risk are not significant. Thus, at the local level, a threshold revision to 5,000 pounds involves very little change in the potential risk associated with releases that are being reported on Form R.23 While there has been concern expressed over EPA's estimate (based on 2002 TRI filings) of the large number of zip codes for which Form R information will no longer be required, this does not take into account that the number of Form A eligible facilities is a direct reflection of their exemplary environmental performance - their status as zero/micro quantity releasers. The data indicates that a large number of manufacturing facilities have now achieved zero or very low releases, and, therefore, qualify for the new Form A. These facilities should be rewarded for their environmental performance via reduced reporting costs. As discussed below, our review of the Form R data that would no longer be reported indicates that this information is of negligible value, especially when compared to the value of the information that EPA will continue to obtain via the required Form R reporting. Based on the 2002 TRI, Pechan has identified 663 zip codes for which all current Form Rs will become Form A eligible at the 5,000 pound ARA threshold.24 It is first important to note that these estimates will overstate the actual impacts because many facilities will continue to use Form R regardless of a change in Form A eligibility. Also, the great majority of these zip codes involve reporting for only one or two Form Rs, and by definition, all of these involve very small quantities. As displayed in Table 2, 554 of the total 663 zip codes have only one or two Form Rs in the 2002 TRI. Thus, the large number of zip codes that can convert entirely to Form A is a truly a function of the fact that more than 550 zip codes have only one or two reports. Table 2. Number of Form Rs Converting to Form As in Zip Codes Where All Form Rs Convert to Form As at the 5,000 Pound Threshold for Non-PBT Chemicals Number of Form Rs Converted Number of Zip to Form A Codes ConverteLost 1 451 2 103 3 55 4 29 5 18 6 5 7 1 8 1 As an illustration, it is instructive to review one state's data. In the case of Maryland, 15 of the state's 47 zip codes would no longer have any Form R reports. However, based on 2003 TRI data, there were only 29 total Form R reports in these 15 zip codes, a majority of which reported either zero or very small releases (less than 50 pounds).25 Expanded Form A Eligibility Would Not Result in a Loss of Valuable Data Current TRI data users will be adequately served by the new Form A reports. Reporters of PBTs that had reported zero emissions into the environment using Form R are now able to convey that same information with the Form A. With regard to the non-PBT forms, despite the fact that the Form A has been in use for the last ten years, it is not surprising that we have not heard that the use of the Form A impaired any risk analysis by either citizens or state or Federal regulators studying toxics releases. Of course, the fact that TRI analyses naturally focus on the facilities with significant releases would explain why TRI analyses are not compromised by the replacement of the Form R data by the Form A range reports. It is important to reiterate that the greater use of Form A does not represent a loss of valuable information on chemical handling. Instead, Form A provides range estimates (currently less than or equal to 500 pounds) for the facility's ARA of each subject chemical. In selecting the 500 pound ARA in 1994, EPA stated that certifications in Form A automatically ensure that the EPCRA "substantial majority" of releases requirement is being met, because the certification itself provides the information through range reporting (also allowed in Form R): EPA believes that the category and level established in this final rule are such that replacement of full Form Rs, for these eligible reports, with certification statements provides the public with an adequate level of information.26 EPA's proposed rule indicates that 99.89 percent of the total production waste (sum of TRI sections 8.1 through 8.7) that is reported at a 500 pound threshold will continue to be reported at a threshold of 5,000 pounds.27 Thus, using the new data to derive the new ARA, the new Form A will continue to provide the public with an adequate level of information. EPA Proposal for PBT Form A Zero Release Reporters Is Consistent with the 1994 Form A Findings The proposed rule provides relief for the first time to certain PBT chemical reporters. Given the thousands of PBT chemical reports with zero releases that have been filed every year since the 2001 reporting year, PBT reporting relief is a subject of great importance to a large number of TRI reporters. The PBT reporting requirement has long been a source of frustration for TRI reporters in that such a burdensome requirement exists for facilities with zero releases. Among certain metals sectors, reporting of zero releases for chemicals such as lead and lead compounds is routine. Although the EPA proposal for PBTs is limited to zero release reports, Advocacy supports the proposal and would suggest that EPA consider a revision of the PBT reportable amount (PRA). Advocacy suggests that EPA consider a revision of the PRA from 500 pounds to 5,000 pounds.28 In its proposal, EPA limited relief to zero releasers whose PRA is less than 500 pounds without analyzing the impacts of alternative PRAs. However, there are several hundred additional reports that would benefit from an increase in the PRA to 5,000 pounds. EPA can still make the critical third finding of leaving 99.9 percent of the total waste quantity reported on Form R (sum of data for sections 8.1 though 8.8), even with a PRA as high as 5,000 pounds.29 EPA should make this revision because the agency can provide burden relief for another 477 Form Rs (making a total of 3180 eligible Form Rs) without compromising community right-to-know. EPA's proposed PBT Form A is reserved only for facilities that have no releases to the environment, whether at the facility or off-site at another facility. In such cases, the PBT chemical has no effect on the environment. The EPA proposal provides relief for approximately 2,000 facilities with 2,700 PBT chemicals that are not released to the environment. As EPA notes, the proposal also provides the facilities with an incentive to reduce releases (this is also true for non-PBT chemicals). In the case of the PBT chemicals, the chemicals of highest environmental concern, the facility must achieve zero releases to qualify for Form A filing. Advocacy believes that the detailed long reports should not be required for facilities that have achieved zero releases at both the facility and any offsite waste handling facilities. As addressed above, EPA makes the identical three findings regarding the non-PBT threshold in 2005 that it performed in the original promulgation of the Form A in November 1994 (59 Fed. Reg. 61488). See Table 1 for a comparison of the 1994 and 2005 findings. Similarly, in proposing the 500 pound PBT Reportable Amount (PRA),30 EPA is able to establish the same three findings. We recount the three PBT findings here: First, since each qualifying report represents no release to the environment, there is no question 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. Secondly, over 99.9 percent of all waste-related activity will continue to be reported on the Form R.31 Third, each PBT report provides information that total waste-related activity is less than the PRA of 500 pounds. As discussed above, we recommend that EPA adjust its PRA to 5,000 pounds, to be consistent with the proposed revised non-PBT ARA of 5,000 pounds. Obviously, shifting to a simpler form will result in some data that is not reported. With respect to the Form R PBT data, none of the details involve releases to the environment, and thus, no information about community risk is missing. Secondly, the remaining Form R data, which primarily involve recycling data, makes up less than 0.1 percent of all recycling data for all PBTs. Thus, Form R would continue to provide information on 99.9 percent of PBT recycling activity nationwide. Additionally, these data have minimal risk consequences since current day recycling activities pose little risk to local communities. Conclusion We welcome EPA's proposal to provide significant relief to the small business community, while maintaining the integrity of a vital EPA program. Sincerely, Thomas M. Sullivan Chief Counsel for Advocacy Kevin L. Bromberg Assistant Chief Counsel for Environmental Law Attachment: Pechan Memorandum, dated January 12, 2006 ENDNOTES 1 40 CFR 372.95. 2 The ARA is the total amount of a chemical reported by the filer including chemical releases, recycling activity, energy recovery, landfilling, or other disposal (sections 8.1 through 8.7 on Form R). 3 The PRA is the is the total amount of a chemical reported by the filer including chemical releases, recycling activity, energy recovery, landfilling, or other disposal, and includes one-time events (sections 8.1 through 8.8 on Form R). 4 Pub. L. No. 96-354, 94 Stat. 1164 (1981) (codified as amended at 5 U.S.C. 601-612). 5 5 U.S.C. 612. 6 Exec. Order No. 13,272 1, 67 Fed. Reg. 53,461 (Aug. 13, 2002) ("E.O. 13272"). 7 E.O. 13272, at 2(c), 67 Fed. Reg. at 53,461. 8 Id. at 3(c), 67 Fed. Reg. at 53,461. 9 70 Fed. Reg. at 57,845 (October 4, 2005). 10 "Proposed Reforms to the Toxics Release Inventory Program: Streamlining Reporting and Preserving Data Integrity," Jack Faucett Associates, April 2004, pp. 8-9. 11 Id. at 8-9. 12 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. In particular, estimating costs for facilities whose ARA is in the vicinity of 500 pounds or less can drop dramatically when the ARA threshold is raised to 5000 pounds, especially for the great majority of facilities that do not change operations substantially from year to year. Further, the costs of the recurring year Form A determination can be reasonable in comparison to the cost of the full Form R for facilities with an ARA that is a fraction of the threshold. 13 E.H. Pechan & Associates, Inc., "Risk-Based Analysis of Form A and Form NS Toxics Release Inventory Reform Proposal Alternatives, Final Report," prepared for U.S. Small Business Administration, Office of Advocacy, October 2004. The report employed data for reporting year 2000. 14 EPA uses the ARA data to define the production-related waste data. 15 Release is defined in the Emergency Planning and Community Right-to-Know Act ; 42 U.S.C. 11001-11050 (2005). 16 42 U.S.C. 11001-11050 (2005). 17 "Proposal to ease EPA rule at issue," Boston Globe, January 5, 2006. 18 "1994 EPA Response to Comments Document, Establishment of Alternate Threshold," November 1994., at page 52. 19 See discussion November 1994 EPA Response to Comments Document, Establishment of Alternate Threshold, at page 54; and Letter to EPA from Office of Advocacy Chief Counsel, dated 09/02/03, Toxic Chemical Release Reporting; Alternate Threshold for Low Annual Reportable Amounts; Request for Comment on Renewal Information Collection: 68 Fed. Reg. 39071 (July 1, 2003), at page 5. 20 Preamble Table 3, 70 Fed. Reg. 57843 (October 4, 2005). 21 The RSEI is a peer-reviewed EPA computer model that uses TRI data inputs to analyze inhalation and ingestion exposure pathways and cancer/non-cancer health risks. The model uses the reported quantities of TRI releases and transfers of chemicals to estimate the risk-related impacts associated with each type of air and water release or transfer by every TRI facility. The risk-related impacts potentially posed by a chemical are a function of chemical toxicity, the fate and transport of the chemical in the environment after it is released, the pathway of human exposure, and the number of people exposed. This information is used to create numerical values that can be added and compared to assess the relative risk of chemicals, facilities, regions, industries, or other factors. These values do not provide absolute measures of risk and can only be interpreted as relative measures that are compared with other such values in a comparative analysis. 22 See Tables IV-4 and IV-5 in Pechan, 2004. 23 The national results are consistent with the local discussion above. For more details see Pechan, 2004. 24 EPA's proposal reports 665 such zip codes. Pechan's analysis of a similar set of 2002 reporting year data found 663 zip codes. Comparisons between the two data sets are provided in the attached Pechan memorandum, "Additional Analysis of TRI Phase II Proposal," dated January 12, 2006. 25 Nine of fifteen Maryland zip codes with all Form A-eligible data had total releases of under 50 pounds; three zip codes had under 1,000 pounds and the remaining three zip codes had under 2,500 pounds (half of the 5,000-pound threshold). 26 "EPA Response to Comments Document, Establishment of Alternate Threshold," November 1994. at page 54. 27 As reported by EPA in Table 3 of the preamble, 70 Fed. Reg. 57822, 57843 (October 4, 2005). 28 For the underlying analysis, see the attached Pechan memorandum, "Additional Analysis of TRI Phase II Proposal," dated January 12, 2006. 29 Id. 30 The PRA is defined as the total of the quantities in entries 8.2-8.8, as explained in the EPA preamble. 70 Fed. Reg. 57822 (October 4, 2005). 31 For the underlying analysis, see the attached Pechan memorandum, "Additional Analysis of TRI Phase II Proposal," dated January 12, 2006.