[DOCID: f:sr253.110]
From the Senate Reports Online via GPO Access
[wais.access.gpo.gov]
Calendar No. 552
110th Congress Report
SENATE
1st Session 110-253
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TOXIC RIGHT-TO-KNOW PROTECTION ACT OF 2007
_______
December 19, 2007.--Ordered to be printed
_______
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 595]
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred the bill (S. 595) to amend the Emergency Planning and
Community Right-to-Know Act of 1986 to strike a provision
relating to modifications in reporting frequency, having
considered the same, reports favorably thereon without
amendment and recommends the bill do pass.
Purpose and Summary of the Legislation
The purpose of the bill is to require the federal Toxics
Release Inventory program to collect and provide to the public
the same amount of information as the program collected and
provided prior to a recent administrative change and to
maintain the program's current reporting frequency for
information.
Background and Need for Legislation
Legislative background of the Toxics Release Inventory Program
In 1984, a toxic chemical released from a U.S. owned plant
in Bhopal, India killed approximately 3,800 people, according
to an estimate cited by Union Carbide (there are other
estimates, most of them higher), and injured thousands of other
people. Shortly thereafter, a serious chemical release from a
plant in West Virginia also demonstrated the importance of
protecting public health from such chemical risks. Spurred on
by these and other threats and by various state and local
initiatives, Congress moved to increase protections for public
and worker safety from chemical threats and to expand the
public's right-to-know about the storage, use and disposal of
chemicals in their communities.
In 1986, Congress enacted the Emergency Planning and
Community Right-to-Know Act (42 U.S.C. 11001-11050) (EPCRA)
under Title III of the Superfund Amendments and Reauthorization
Act (P.L. 99-499). EPCRA's two main goals are to facilitate
planning for the dangerous release of chemicals and to provide
the public with important information, which was previously
unavailable, on toxic and hazardous chemicals in their
communities. Section 313 of EPCRA created the Toxics Release
Inventory program (TRI), which requires facilities in the
manufacturing sector and federal operations to report when they
release specific quantities of certain chemicals.
In 1990, Congress enacted the Pollution Prevention Act (42
U.S.C. 13101 et seq.) to expand the types of reported
information to include data on reducing the use of dangerous
chemicals, reducing pollution levels, and expanding the
public's right-to-know about the production, use, and disposal
of toxic chemicals. A key aspect of this law was the
requirement that facilities report the quantities of toxic
chemicals that they manage in waste and the types of pollution
prevention activities that they undertake.
Congress intended TRI to give the public broad access to
environmental information that it could use to facilitate
pollution reductions by ensuring industry and government
agencies are accountable for pollution prevention activities.
Congress also intended for government and other officials to
use TRI to better measure the success of public health and
environmental safeguards. The program was also meant to provide
an important tool to help various stakeholders work with
industry to identify ways to reduce pollution.
Section 313 (h) of EPCRA reflects the broad information
collection and dissemination authorities Congress intended for
TRI:
The release forms required under this section are
intended to provide information to the federal, state,
and local governments and the public, including
citizens of communities surrounding covered facilities.
The release form shall . . . inform persons about
releases of toxic chemicals to the environment; to
assist governmental agencies, researchers, and other
persons in the conduct of research and data gathering;
to aid in the development of appropriate regulations,
guidelines, and standards; and for other similar
purposes.
Facilities submit this information to the Environmental
Protection Agency (EPA), which compiles the data and puts it
into a computerized database, known as the Toxics Release
Inventory. The public has access to this database and the
underlying data. The types of industries required to report
include manufacturing, metal mining, coal mining, coal and oil
burning electrical utilities, hazardous waste treatment and
disposal facilities, chemicals distributors, petroleum bulk
storage terminals, and solvent recycling operations.
The Toxics Release Inventory Program helps to prevent and reduce
pollution
Our nation has benefited greatly from using TRI
information. These benefits inure to individual citizens,
businesses, investors, labor organizations, public health
officials, academics, public interest and environmental
organizations, state, federal and local government agencies and
others that use TRI. This program provides citizens with
information that they can use in deciding whether to move their
families into certain areas, businesses with important
information on ways to cut costs and reduce pollution,
investors with key information on potentially risky businesses
practices, and governments with data that helps to wisely spend
taxpayer resources.
In 1991, shortly after EPA implemented TRI, the federal
General Accounting Office (now, the Government Accountability
Office) (GAO), investigated the benefits of TRI. The GAO noted:
Although the inventory has been available only since
1989, it has become a valuable source of environmental
information. For example, federal and state governments
have used the data to enact laws designed to control
and reduce toxic emissions. Also, the public
availability of the data has prompted some companies to
set emissions reduction goals. (General Accounting
Office, Toxic Chemicals: EPA's Toxics Release Inventory
is Useful but can be Improved, 5, GAO/RECD-91-121
(1991).
Over a decade later, another federal report found a
continuation of these benefits. A 2003 EPA report summarized
the following benefits of TRI:
<bullet> Communities use TRI data to begin dialogues with
local facilities and to encourage them to reduce their
emissions, develop pollution prevention (P2) plans, and improve
safety measures.
<bullet> Public interest groups, government, academicians,
and others use TRI data to educate the public about toxic
chemical emissions and potential risk.
<bullet> Industry uses TRI data to identify P2
opportunities, set goals for toxic chemical release reductions,
and demonstrate its commitment to and progress in reducing
emissions.
<bullet> Federal, state, and local governments use TRI
data to set priorities and allocate environmental protection
resources to the most pressing problems.
<bullet> Regulators use TRI data to set permit limits,
measure compliance with those limits, and target facilities for
enforcement activities.
<bullet> Public interest groups use TRI data to
demonstrate the need for new environmental regulations or
improved implementation and enforcement of existing
regulations.
<bullet> Investment analysts use TRI data to provide
recommendations to clients seeking to make environmentally
sound investments.
<bullet> Insurance companies use TRI data as one
indication of potential environmental liabilities.
<bullet> Governments use TRI data to assess or modify
taxes and fees based on toxic emissions or overall
environmental performance.
<bullet> Consultants and others use TRI data to identify
business opportunities, such as marketing P2 and control
technologies to TRI reporting facilities.
(Environmental Protection Agency, How Are the Toxics
Release Environment Data Used?, 1-2, EPA-260-R-002-004 (2003).
EPA's report highlighted the importance of TRI to people in
communities across the country:
Citizen activists and community organizations educate
their citizens or residents about toxic chemical
releases using TRI data, often combining education with
a call to action. Some community organizations have
used TRI data to initiate discussions with local
industries or to call on local and public interest
organizations to lobby for their causes. Local public
interest organizations improve citizen environmental
awareness, encouraging them to become involved in the
environmental health of their communities. Members of a
local public interest organization can be of technical
and legal help to citizens in the field of
environmental negotiation. (Environmental Protection
Agency, How Are the Toxics Release Environment Data
Used?, 3, EPA-260-R-002-004 (2003)).
Government reports also highlight the importance of TRI for
businesses:
For some industries, the creation of the TRI marked
the first time that company managers and operators
could look closely at the quantity of chemicals being
released from their facilities. Initially, some
companies expressed surprise at their own toxic
chemical release amounts and set goals to improve their
environmental performance. Some companies have reduced
their toxic chemical releases and increased their
efficiency at the same time, leading to an increased
profit. (Environmental Protection Agency, How Are the
Toxics Release Environment Data Used?, 9, EPA-260-R-
002-004 (2003)).
Company officials [have] stated that one key way that
pollution prevention improves the bottom line is by
reducing production costs. Certain pollution prevention
techniques, for example, can help a firm lower its
materials cost, improve the efficiency of the
production process, or eliminate the costs of treatment
and disposal . . . Several firms . . . also cited a
firm's sensitivity to its community relations and
public image as an important inventive to pursue
pollution prevention. (General Accounting Office,
Environmental Protection: EPA Should Strengthen its
Efforts to Measure and Encourage Pollution Prevention,
GAO-01-283, 6 (2001)).
Organized labor has a long history of advocating for the
right to know about chemical hazards in the workplace in order
to increase worker-safety. EPA information also provides a good
example of workers successfully using TRI to increase safety:
The Amalgamated Clothing and Textile Workers Union teamed
up with a Minnesota community and used the TRI data to pressure
their company to reduce the use of methylene chloride, a known
health hazard to the workers, and search for safe alternatives.
Union members and activists pressured the state for tougher
regulations that would force the company to cut emissions by
93%.
(Environmental Protection Agency, Toxics Release Inventory:
Community Right-to-Know, Using the Toxics Release Inventory
(2000))
TRI also benefits government agencies' efforts to protect
public health. As far back as 1991, the federal Agency for
Toxic Substances and Disease Registry (ATSDR) used TRI data to
analyze the present and future impacts of exposure to hazardous
substances on human health.\1\ EPA uses TRI data to support
clean air safeguards and to monitor companies' compliance with
other public health and environmental protections.\2\ TRI helps
state and federal agencies to better allocate scarce public
resources to safeguard public health, and to target initiatives
that seek to help businesses conduct pollution prevention and
reduction activities.
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\1\General Accounting Office, Toxic Chemicals: EPA's Toxics release
Inventory Is Useful but can be Improved, 22 GAO/RECD-91-121,22 (1991).
\2\Environmental Protection Agency, Toxics Release Inventory:
Community Right-to-Know, Using the Toxics Release Inventory (2000).
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The following information describes how some state agencies
have used TRI to reduce pollution:
The [pollution prevention] Program of the Colorado
Department of Public Health and the Environment used TRI data,
in combination with other data about hazardous waste and toxic
chemical releases to air and water, to identify the ten
industry organizations responsible for the largest quantities
of hazardous waste generation or toxic chemical releases in the
state. This research served as the basis for establishing
priorities for P2 activities and for distribution of technical
assistance grants. The report also aided in targeting large
companies for participation in the ``Governor's [Pollution
Prevention] Challenge Program'' to reduce toxic chemical
releases and hazardous waste generation. (Environmental
Protection Agency, How Are the Toxics Release Environment Data
Used?, 11, EPA-260-R-002-004 (2003)).
The [pollution prevention] Division in Georgia's Department
of Natural Resources used TRI data to identify the technical
assistance needs of manufacturing sectors generating chemicals
that pose the greatest relative risk to public health and the
environment. The Division prioritized chemicals, examined
manufacturing sectors releasing the highest priority chemicals,
and identified particular subsectors for further assessment.
The Division also conducted in-depth manufacturing sector
assessments to determine which processes produce which wastes,
what multi-media waste problems exist, what [pollution
prevention] activities were being undertaken, and what
additional opportunities might exist. Id. at 12.
The Florida Waste Reduction Assistance Program provides
assistance in source reduction and waste minimization to
facilities handling TRI chemicals. The Program relies on TRI
and other data to target facilities for the Program. Id. at 12.
The Minnesota Office of Environmental Assistance reported a
significant use of pollution prevention measure among the 10
largest managers of toxic chemicals in the state. Four of the
10 facilities achieved an overall reduction in chemical usage
through pollution prevention. (General Accounting Office,
Environmental Protection: EPA Should Strengthen its Efforts to
Measure and Encourage Pollution Prevention, GAO-01-283, 5-6
(2001).
Under Massachusetts' Toxic Use Reduction Program, reporting
facilities reduced toxic waste generation by 48 percent from
1990 to 1998--a decline state officials said could be
attributed in part to greater use of pollution prevention. Id.
at 6.\3\
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\3\A report by the Toxics Use Reduction Institute, which helps to
implement the State program, recognizes the cumulative benefits of
various state and federal programs, including TRI, for the success of
source reduction and pollution prevention activities. The Massachusetts
Toxic Use Reduction Institute, Benefit-Cost Analysis of The
Massachusetts Toxic Use Reduction Act, 3-5 (1997).
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A 2003 report from the National Pollution Prevention
Rountable, partially funded by EPA, describes the myriad
benefits from 60 state and local pollution prevention
initiatives across the country. The study found that between
1990 and 2000, more than 167 billion pounds of pollution were
prevented.\4\ Additional benefits included the conservation of
more than 4 billion gallons of water, and cost savings of $404
million from only just 13 programs with an annual budget of
$1.9 million.\5\
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\4\National Pollution Prevention Rountable, An Ounce of Pollution
Prevention is Worth Over 167 Billion* Pounds of Cure: A Decade of
Pollution Prevention Results 1990-2000,4 (2003).
\5\National Pollution Prevention Rountable, An Ounce of Pollution
Prevention is Worth Over 167 Billion* Pounds of Cure: A Decade of
Pollution Prevention Results 1990-2000,4 (2003).
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TRI has also made our country a world leader in right-to-
know efforts. EPA reports that TRI has served as a model for
roughly 30 other nations to enact or consider similar
programs.\6\ Citizens have also used TRI when lobbying the
United Nations to promote community right-to-know laws around
the globe.\7\
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\6\Environmental Protection Agency, How Are the Toxics Release
Environment Data Used?, 14, EPA-260-R-002-004 (2003)).
\7\Environmental Protection Agency, How Are the Toxics Release
Environment Data Used?, 14, EPA-260-R-002-004 (2003)).
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Comprehensive and timely data is critical for the Toxics Release
Inventory Program's success
Common sense and independent evaluations of the TRI program
tell us that the program's utility is tied to the
comprehensiveness of its data. In 1991, a GAO report concluded,
``The inventory would be more useful to regulators and the
public if it were comprehensive.''\8\ This helps to explain
Congress' rationale for expanding the program's reporting
requirements and why EPA has expanded such requirements during
the program's history.
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\8\General Accounting Office, Toxic Chemicals: EPA's Toxics release
Inventory Is Useful but can be Improved, 22 GAO/RECD-91-121,3 (1991).
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The law original required reporting for 313 chemicals or
categories of chemicals, but gave EPA authority to add or
eliminate chemicals in response to citizen petitions or on the
agency's own analysis, consistent with the text and intent of
the law. The Congressional Research Service found that EPA has
added about 350 chemicals or categories of chemicals, while
removing more than 15.\9\ EPA reduced the reporting threshold
for certain persistent, bioaccumulative, and toxic chemicals on
October 29, 1999.\10\ The Agency also issued a rule on January
17, 2001 that reduced the threshold for reporting releases of
lead compounds.\11\
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\9\Congressional Research Service, The Emergency Planning and
Community Right-to-Know Act (EPCRA): A Summary, 4 (2007)
\10\64 Fed. Reg. 58665-58753.
\11\66 Fed. Reg. 4500-4547. However, the then-incoming
administration delayed this rule's effective date 60 days until April
17, 2001. 66 Fed. Reg. 10585 (Feb. 16, 2001).
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The TRI program also balances these reporting safeguards
with provisions that ease the reporting burden. For example,
TRI has a reporting exemption for small businesses with 10 or
fewer employees and it has a reporting exemption for de minimis
amounts of toxic chemicals. It allows facilities that release
500 pounds of toxic chemicals--including substances known to
cause cancer--to use an expedited form for reporting. The
program also has several reporting exemptions for different
uses of chemicals, including janitorial services, maintenance
activities for facilities and automobiles, personal use by
employees, certain laboratory services, and certain other
facilities that use and release toxic chemicals.
The need for timely data is without question. A right-to-
know program by its very nature requires timely, accurate, and
consistent data to ensure accountability, track results, and
provide a usable dataset for comparisons across time and
between industries or facilities. Business, public health
officials, the public, government agencies and others rely on
TRI data as a key tool to accomplish these types of analysis.
EPA's decision to change the Toxics Release Inventory Program
On October 4, 2005 EPA proposed to modify TRI reporting
requirements in three ways. EPA, Toxic Release Inventory Burden
Reduction Proposed Rule, 60 Fed. Reg. 57822 (2005). First, the
agency proposed to eliminate annual TRI reporting and replace
it with reporting only every other year. Second, the agency
proposed to allow facilities to increase--by ten times--the
amount of toxic chemicals released or managed before the
facilities had to provide detailed information on these
activities.\12\ Third, the agency reversed its earlier position
and proposed to allow less-detailed reporting on persistent,
bioaccumulative toxins, such as mercury and lead that are used
by the business but not released into the environment. Id. at
57839.
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\12\EPA proposed to allow facilities that released or managed 5,000
pounds of toxic chemicals, which are not persistent, bioaccumulative,
to report to TRI using a Form A, rather than a Form R. Form Rs provide
more information than Form As, including a description of how the
facility uses the chemical, the maximum amount of the chemical on-site
during a year, on-site releases of the chemical (e.g. releases through
stacks, discharges to streams or rivers, or injection in the ground),
the methodology used to produce the release estimates, on-site waste
management activities, including the amounts managed through recycling,
energy recovery, or treatment, the type of recycling processes used
(e.g. metal recovery by smelting, solvent recovery by distillation),
and energy recovery methods (e.g. kiln, furnace, or boiler), waste
treatment methods, and on-site waste treatment efficiency.
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Opposition to EPA's proposal
Federal and state public health officials, states'
attorneys general, first responders, labor unions, state
pollution control officials, environmental groups and others
opposed EPA's proposed reduction in TRI reporting. (See the
Appendix for some of the documents referred to in this
paragraph.) In all, 23 state agencies and attorneys general
sent in comments opposing the proposed changes. EPA's Science
Advisory Board also expressed concerned over the changes. The
federal Centers for Disease Control and the federal Agency for
Toxic Substances and Disease Registry noted that they relied on
consistent TRI data to monitor and study health effects. The
Environmental Council of the States opposed EPA's proposal.
A 2006 analysis of comments submitted to EPA on its
proposal found:
EPA received comments from 122,420 individuals and groups.
The vast majority of these commenters, 122,386 (99.97%),
strongly opposed the changes, and only 34 commenters (0.03%)
expressed some degree of support for the proposals. The
opposition came from over 120,000 average citizens, 23 state
governments, more than 60 members of Congress, more than 30
public health organizations, more than 40 labor organizations
and more than 200 environmental and public interest
organizations. Support for the proposals came almost entirely
from companies and industry associations in addition to a
handful of government agencies and individuals. (OMB Watch,
Against the Public's Will, 2 (2006)).
On May 18, 2006 the House of Representatives, in a bi-
partisan rejection of EPA's proposed modifications, adopted an
amendment 231 to 187 to prohibit EPA from implementing the
proposed changes. The amendment was sponsored by Reps. Frank
Pallone (D-NJ) and Hilda Solis (D-CA). In all, 48 Republicans
joined with 182 Democrats and one Independent to support the
amendment.
Despite widespread opposition, EPA issued a rule on
December 18, 2006 that reduced detailed information provided to
TRI. EPA, 71 Fed. Reg. 76932 (2006). While EPA dropped its
proposal to institute biannual reporting, the agency quadrupled
the amount of toxic chemicals that facilities could release or
manage and still provide less-detailed information. The rule
also allowed facilities to provide less-detailed information on
the management of persistent, bioaccumulative toxins that are
not released into the environment.
Government Accountability Office analysis of EPA's decision
The Government Accountability Office (GAO), has
investigated EPA's activities with the TRI rulemaking, and
provided the committee with GAO's interim findings on February
6, 2007. GAO testified that
late in the (rulemaking) process, senior EPA management
directed the inclusion of a burden reduction option
that raised the Form R reporting threshold, an option
that the TRI workgroup charged with analyzing potential
options, had dropped from consideration early in the
process. Second, EPA reviewed this option on an
expedited schedule that appears to have provided a
limited amount of time for conducting various impact
analyses. Last, the decision to expedite final agency
review, when EPA's internal and regional offices
determine whether they concur with the final proposal,
appears to have limited the amount of input they could
provide to senior EPA management. (John Stephenson,
Director, Natural Resources and the Environment, GAO,
Environmental Information, EPA Actions Could Reduce the
Availability of Environmental Information to the Public
(2007)).
GAO reported that ``the TRI reporting changes will likely
have a significant impact on information available to the
public about dozens of toxic chemicals from thousands of
facilities in states and communities across the country.'' Id.
GAO estimated that 3,565 facilities ``would no longer have to
report any quantitative information to TRI'' and ``that
detailed information from more than 22,000 (reporting forms)
could no longer be reported to the TRI if all eligible
facilities choose to use (less detailed reporting forms),
affecting more than 33 percent of reports in California,
Massachusetts, and New Jersey.'' Id. ``[S]tates could lose all
quantitative information about releases of some chemicals,
ranging from 3 in South Dakota to 60 in Georgia.'' Id.
Importantly, GAO found EPA's decision could reduce other
critically important information, including data on facilities'
efforts to reduce the use of toxic chemicals, recycle toxics,
and transfer toxic chemicals to other facilities. Id. at 29-31.
GAO also testified that EPA had overestimated cost savings from
this proposal. Id.
Section-by-Section Analysis
Section 1. Short title
This section sets forth the title of the bill as the Toxic
Right to Know Protection Act.
Section 2. Modification of reporting frequency
This section requires facilities to annually report to the
Toxic Release Reporting program.
Section 3. Requirements relating to toxic release inventory
This section requires the Administrator of the
Environmental Protection Agency to establish the use of Form A
at a threshold of not greater than 500 pounds for nonpersistent
nonbioaccumulative and toxic chemicals and prohibits the use of
Form A for chemicals of special concern.
Legislative History, Committee Views and Votes
HEARING
On February 6, 2007 the Senate Committee on Environment and
Public Works held a hearing to examine recent administrative
decisions, including EPA's proposed changes to TRI.
ROLL CALL VOTES
On July 31, 2007 the committee held a business meeting to
consider a variety of legislation, including Senator
Lautenberg's Toxic Right to Know Protection Act (S. 595). The
committee passed S. 595 on a roll call vote of 10 to 9 (voting
aye: Senators Boxer; Baucus; Lieberman; Carper; Clinton;
Lautenberg; Cardin; Sanders; Klobuchar; and Whitehouse. Voting
nay: Senators Inhofe; Warner; Voinovich; Isakson; Vitter;
Barrasso; Craig; Alexander; and Bond).
REGULATORY IMPACT STATEMENT
The committee finds that while the legislation would
increase some administrative burden on private entities, the
industry-wide costs are estimated to be less than $10 million
annually, which is well below the annual threshold established
by the Unfunded Mandates Reform Act of 1995. The committee also
notes that the Government Accountability Office has questioned
the Environmental Protection Agency's estimates of burden
reductions for its rule, which could reduce the potential costs
of the legislation.
MANDATES ASSESSMENT
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the committee finds that S. 595 contains
both intergovernmental and private-sector unfunded mandates.
However, the cost of complying with these mandates will not
exceed the annual thresholds established under UMRA.
COST OF LEGISLATION
Section 403 of the Congressional Budget and Impoundment
Control act requires a statement of the cost of the reported
bill, prepared by the Congressional Budget Office, be included
in the report.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
S. 595 would repeal the Environmental Protection Agency's
(EPA's) authority to determine how often owners or operators of
chemical facilities must submit certain information regarding
the manufacture or use of toxic chemicals. This legislation
also would require EPA to establish eligibility thresholds for
using form-A certification (a less-detailed form used by owners
and operators of chemical facilities to report on chemical
releases and waste management under the Toxics Release
Inventory Program) at not greater than 500 pounds for
nonpersistent bioaccumulative and toxic chemicals. (Currently,
form-A certification is allowed even if more than 500 pounds of
a chemical is released.) Finally, this legislation would
prohibit the use of this less-detailed statement for any
chemical identified by EPA as a chemical of special concern.
Based on information from EPA, CBO estimates that enacting
S. 595 would have no significant effect on the federal budget.
CBO estimates that proposed changes in reporting requirements
would not substantively change EPA's oversight of toxic
chemical releases and would not significantly affect the
agency's costs. Enacting this legislation would not affect
direct spending or revenues.
S. 595 contains an intergovernmental mandate as defined in
the Unfunded Mandates Reform Act (UMRA) because it would reduce
the threshold for reporting chemical releases under the
Emergency Planning and Community Right-to-Know Act of 1986.
That change would increase the administrative burden for state
and local entities required to file such reports with EPA.
Based on information from EPA, the industry wide cost of the
new requirements are estimated to be less than $10 million
annually. Because state and local entities represent only a
small portion of those costs, CBO estimates that the additional
costs would not be significant and would not exceed the
threshold established in UMRA ($66 million for
intergovernmental mandates in 2007, adjusted annually for
inflation).
S. 595 would impose a private-sector mandate as defined in
UMRA by increasing the administrative requirements for certain
facilities that report data on chemical releases to EPA. Under
the bill, those facilities would be required to report chemical
releases using a longer, more-detailed form. Based on
information from EPA, CBO estimates that the incremental cost
to the industry to comply with the mandate would be less than
$10 million annually. Therefore, the cost of the mandate would
fall well below the annual threshold established by UMRA for
private-sector mandates ($131 million in 2007, adjusted
annually for inflation).
The CBO staff contacts for this estimate are Susanne S.
Mehlman (for federal costs), Neil Hood (for the state and local
impact), and Amy Petz (for the private-sector impact). This
estimate was approved by Peter H. Fontaine, Assistant Director
for Budget Analysis.
MINORITY VIEWS OF SENATORS INHOFE, WARNER, VOINOVICH, ISAKSON, VITTER,
BARRASSO, CRAIG, ALEXANDER, BOND
We write separately to express our disagreement with the
language and the intent of S. 595, the Toxic Right to Know
Protection Act of 2007, and to urge the full Senate to reject
this bill or any measure that seeks to rollback the
Environmental Protection Agency's Toxic Release Inventory (TRI)
final rule promulgated in December 2006. This rule was written
to ease paperwork burdens of small businesses with respect to
the use of forms required to be submitted under the TRI program
and does not harm right-to-know.
First, we agree with the majority about the importance of
the TRI Program. We also agree that the release forms required
by TRI are intended to provide important information and data
to the public regarding releases and transfers of toxic
substances from industrial facilities. This data serves to
encourage pollution prevention and reduction activities, as
well as to facilitate research and inform regulatory processes
at all levels of government. However, we disagree that the 2006
TRI rule jeopardizes the TRI program nor do we believe that the
streamlined reporting requirements provided for by the rule run
afoul of Congress' original intent.
EPA took four years to develop the TRI rule and during that
time engaged stakeholders, including Congress, through multiple
on-line dialogues, physical meetings, and formal rulemaking
procedures. Significant changes were made to the content and
scope of the rule due to the comment from interested parties.
Opponents of the final December 2006 TRI rule characterize
it as weakening the public's right to know, eliminating
disclosure requirements, and allowing facilities to hide the
amounts of chemicals they may use. Yet, the TRI rule does not
exempt any facility from reporting its releases. Everyone must
still report. The rule simply changes the eligibility
requirements for using the shorter, easier to complete Form A,
allowing certain smaller reporters to use the less-detailed
version. Under the new rule, the public will still receive the
same detailed data on more than 99% of the releases; EPA's
approach of retaining 99% of the release data in the Form Rs
was first developed by the Clinton Administration under EPA
Administrator Carol Browner in the creation of the Form A in
1994.
In addition, the only formal study of the effect of this
new rule on the community right-to-know concluded that the rule
would not have any significant effect on the TRI data uses.\1\
Supporters of S. 595 have provided no evidence to contradict
this study.
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\1\E. H. Pechan & Associates, Inc., ``Review and Analysis of the
Effect of EPA's TRI Phase II Burden Reduction Proposal on TRI Data
Uses, prepared for the US Small Business Administration, Office of
Advocacy under Contract No. SBAHQ-03C0020, June 2007.
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The rule, in fact, serves to provide a meaningful incentive
to businesses, particularly small businesses, to reduce
chemical emissions and increase environmentally preferred
chemical waste management activities, such as recycling and
energy recovery. For example, if a facility reduces their
releases of the environmental substances of special concern to
zero, the facility is allowed to use Form A to reflect that
reduction. If they release even one-tenth of a pound of that
substance, they must use the longer, more complex form. For
other, less toxic substances, Form A is only available to a
facility if they reduce their releases to below 2000 pounds and
only if their total waste does not exceed 5000 pounds. The EPA
asserts that ``by imposing stringent limits on releases as a
pre-condition of short-form reporting, EPA is encouraging
businesses to minimize disposal into the environment.''\2\ We
agree. This rule provides regulatory relief in exchange for
superior environmental performance. Further, enactment of this
bill would deny EPA the opportunity to evaluate and possibly
improve the environmental incentives that EPA has carefully
crafted.
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\2\August 20, 2007 EPA Assistant Administrator and Chief
Information Officer Molly A. O'Neill letters to Senators Barbara Boxer
and James Inhofe.
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Small businesses are disproportionately impacted by
regulation. The overall regulatory burden in the United States
exceeds $1.1 trillion.\3\ For firms employing fewer than 20
employees, the most recent estimate of their regulatory burden
is $7,647 per year per employee.\4\ EPA estimates that, on
average, the ``reduction in reporting is about 15 hours for
each PBT [persistent, bioaccumulative, toxic] report submitted
on a short form and about 9 hours for a non-PBT chemical.''\5\
Proponents of suggest that 15 hours is not a meaningful
reduction of time. However, the small business community
ardently disagrees.
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\3\Thomas S. Sullivan, Chief Counsel for Advocacy, U.S. Small
Business Administration, Testimony before the Senate Environment and
Public Works Committee, February 6, 2007.
\4\Sullivan 4.
\5\Stephen Johnson, Administrator, US Environmental Protection
Agency, Testimony before the Senate Environment and Public Works
Committee, February 6, 2007.
``[T]ime spent on completing paperwork is time that I
cannot spend on other things. * * * The time that I
spend on paperwork is time that is not spent
supervising employees, working with customers, and most
importantly looking for new business. We face brutal
competition from Chinese decorators, and the reality is
that paperwork burdens add to our cost of doing
business by absorbing my time in particular. EPA
estimates in the final rule that I'll save 15.5 hours a
year of staff time if I qualify to use the Form A
instead of the complicated Form R. That is almost two
days of my time which would really help.''\6\
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\6\Nancy Klinefelter, President, Baltimore Glassware Decorators,
Testimony before the Senate Environment and Public Works Committee,
February 6, 2007.
The TRI rule does not alleviate all the burdens of small
business; but with it, we believe EPA has taken a carefully
balanced step in the right direction by relieving some of the
costs borne by smaller reporting facilities yet retaining the
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integrity of the TRI program.
James M. Inhofe.
George V. Voinovich.
Larry E. Craig.
John Warner.
Johnny Isakson.
Lamar Alexander.
John Barrasso.
Kit Bond.
David Vitter.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT OF 1986
* * * * * * *
42 USCS Sec. 11023
Sec. 11023. Toxic chemical release forms
(a) Basic requirement. The owner or operator of a facility
subject to the requirements of this section shall complete a
toxic chemical release form as published under subsection (g)
for each toxic chemical listed under subsection (c) that was
manufactured, processed, or otherwise used in quantities
exceeding the toxic chemical threshold quantity established by
subsection (f) during the preceding calendar year at such
facility. Such form shall be submitted to the Administrator and
to an official or officials of the State designated by the
Governor on or before July 1, 1988, and annually thereafter on
July 1 and shall contain data reflecting releases during the
preceding calendar year.
* * * * * * *
[(i) Modifications in reporting frequency.
[(1) In general. The Administrator may modify the
frequency of submitting a report under this section,
but the Administrator may not modify the frequency to
be any more often than annually. A modification may
apply, either nationally or in a specific geographic
area, to the following:
[(A) All toxic chemical release forms
required under this section.
[(B) A class of toxic chemicals or a category
of facilities.
[(C) A specific toxic chemical.
[(D) A specific facility.
[(2) Requirements. A modification may be made under
paragraph (1) only if the Administrator--
[(A) makes a finding that the modification is
consistent with the provisions of subsection
(h), based on--
[(i) experience from previously
submitted toxic chemical release forms,
and
[(ii) determinations made under
paragraph (3), and
[(B) the finding is made by a rulemaking in
accordance with section 553 of title 5, United
States Code.
[(3) Determinations. The Administrator shall make the
following determinations with respect to a proposed
modification before making a modification under
paragraph (1):
[(A) The extent to which information relating
to the proposed modification provided on the
toxic chemical release forms has been used by
the Administrator or other agencies of the
Federal Government, States, local governments,
health professionals, and the public.
[(B) The extent to which the information is
(i) readily available to potential users from
other sources, such as State reporting
programs, and (ii) provided to the
Administrator under another Federal law or
through a State program.
[(C) The extent to which the modification
would impose additional and unreasonable
burdens on facilities subject to the reporting
requirements under this section.
[(4) 5-year review. Any modification made under this
subsection shall be reviewed at least once every 5
years. Such review shall examine the modification and
ensure that the requirements of paragraphs (2) and (3)
still justify continuation of the modification. Any
change to a modification reviewed under this paragraph
shall be made in accordance with this subsection.
[(5) Notification to Congress. The Administrator
shall notify Congress of an intention to initiate a
rulemaking for a modification under this subsection.
After such notification, the Administrator shall delay
initiation of the rulemaking for at least 12 months,
but no more than 24 months, after the date of such
notification.
[(6) Judicial review. In any judicial review of a
rulemaking which establishes a modification under this
subsection, a court may hold unlawful and set aside
agency action, findings, and conclusions found to be
unsupported by substantial evidence.
[(7)Applicability. A modification under this
subsection may apply to a calendar year or other
reporting period beginning no earlier than January 1,
1993.
[(8) Effective date. Any modification made on or
after January 1 and before December 1 of any calendar
year shall take effect beginning with the next calendar
year. Any modification made on or after December 1 of
any calendar year and before January 1 of the next
calendar year shall take effect beginning with the
calendar year following such next calendar year.]
[(j)] (i) EPA management of data. The Administrator shall
establish and maintain in a computer data base a national toxic
chemical inventory based on data submitted to the Administrator
under this section. The Administrator shall make these data
accessible by computer telecommunication and other means to any
person on a cost reimbursable basis.
[(k)] (j) Report. Not later than June 30, 1991, the
Comptroller General, in consultation with the Administrator and
appropriate officials in the States, shall submit to the
Congress a report including each of the following:
(1) A description of the steps taken by the
Administrator and the States to implement the
requirements of this section, including steps taken to
make information collected under this section available
to and accessible by the public.
(2) A description of the extent to which the
information collected under this section has been used
by the Environmental Protection Agency, other Federal
agencies, the States, and the public, and the purposes
for which the information has been used.
(3) An identification and evaluation of options for
modifications to the requirements of this section for
the purpose of making information collected under this
section more useful.
[(l)](k) Mass balance study.
(1) In general * * *
* * * * * * *
Sec. 11042. Trade secrets
(a) Authority to withhold information.
(1) General authority.
(A) * * *
* * * * * * *
(h) Information on adverse effects.
(1) In any case in which the identity of a hazardous
chemical or an extremely hazardous substance is claimed
as a trade secret, the Governor or State emergency
response commission established under section 301 shall
identify the adverse health effects associated with the
hazardous chemical or extremely hazardous substance and
shall assure that such information is provided to any
person requesting information about such hazardous
chemical or extremely hazardous substance.
(2) In any case in which the identity of a toxic
chemical is claimed as a trade secret, the
Administrator shall identify the adverse health and
environmental effects associated with the toxic
chemical and shall assure that such information is
included in the computer database required by section
[313(j)]313(i) and is provided to any person requesting
information about such toxic chemical.
* * * * * * *
Sec. 11046. Civil actions
(a) Authority to bring civil actions.
(1) Citizen suits. Except as provided in subsection
(e), any person may commence a civil action on his own
behalf against the following:
(A) * * *
* * * * * * *
(B) The Administrator for failure to do any
of the following:
(i) Publish inventory forms under
section 312(g).
(ii) Respond to a petition to add or
delete a chemical under section
313(e)(1) within 180 days after receipt
of the petition.
(iii) Publish a toxic chemical
release form under [section] 313(g).
(iv) Establish a computer database in
accordance with section [313(j)]313(i).
(v) Promulgate trade secret
regulations under section 322(c).
(vi) Render a decision in response to
a petition under section 322(d) within
9 months after receipt of the petition.
* * * * * * *
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