Caroline Keefe

February 23, 2007

If you lived next to a facility that handled chemicals in large quantities, would you want to have access to information regarding the facility's chemical waste management practices? The obvious answer is yes, unless you happen to prefer the old "ignorance is bliss" philosophy. In fact, most of us would likely experience a certain degree of comfort just knowing that EPA requires facilities to publicly disclose how they handle and treat waste. However, do not get too comfortable. EPA's recently promulgated Toxics Release Inventory (TRI) Burden Reduction Final Rule (TRI Rule) allows certain facilities to report less information than before, even if such facilities deal with chemicals that EPA lists as persistent, bioaccumulative, and yes, even toxic.[1] The new TRI Rule works against the intended purposes of the Toxics Release Inventory Program and serves as yet another example of how administrative regulations can circumvent the intent of Congress.

A bit of background on the Toxics Release Inventory Program (TRI Program) is necessary in order to discuss the implications of the new TRI Rule. Congress introduced the TRI Program under Emergency Planning and Community Right to Know Act of 1986 (EPCRA),[2] and later expanded the TRI Program in 1990, pursuant to the Pollution Prevent Act.[3] In administering the TRI Program over the years, EPA has attempted to balance two important policy interests: 1) to encourage the recycling and treatment of waste without unduly burdening the regulated community: and 2) ensuring that state and local governments, as well as the public, receive valuable information to fulfill the purposes of the TRI program.[4] Although this is no small task, EPA has a choice in how to allocate potential risk when it comes to the chemical industry and public health.

The main feature of the TRI Program is a public database containing information on waste management practices and chemical release incidents.[5] This database, which lists information on over 650 chemicals,[6] serves three main purposes: 1) it informs federal state and local governments as well as the public about releases of toxic chemicals into the environment; 2) it assists the research activities of agencies and researchers; and 3) it assists the agencies in developing appropriate regulations and standards.[7]

The bulk of the data originates from annual reports submitted by facilities pursuant to EPCRA and PPA.[8] According to EPCRA § 313, a facility owner or operator must submit an annual release report to local and state agencies. This report explains how the facility uses each toxic chemical and estimates the maximum amount of each chemical that was present at the facility during the reporting year.[9] Additionally, the facility must describe the disposal and treatment methods for each waste stream, rate the efficiency of each method, and provide the amounts of each toxic chemical entering the environment on an annual basis.[10]

Section 6607 of PPA requires each facility to submit a source reduction and recycling report. In this report, the facility owner or operator must report the amounts of individual toxic chemicals that the facility recycles and releases into the waste stream, as well as the amounts of each chemical that enter the environment through activities not associated with the production process.[11] This report must also provide details on source reduction practices, including procedures for measuring for each toxic chemical in use.[12]

The TRI Program is selective in terms of which facilities it targets. In order for a facility to be subject to the TRI Program it must meet the following requirements: 1) employ ten or more full time employees; 2) be listed in the North American Industrial Classification Code listed in 40 C.F.R. 372.23 or Executive Order 13148 ; and 3) use exceeding a specified amount of toxic chemicals.[13] If a facility manufactures, processes, or uses toxic chemicals above a threshold amount, it will be subject to TRI reporting requirements.[14] These reporting requirements target various industries including the metal, coal mining, electric utility, and manufacturing industries.[15]

Facilities use different reporting forms depending on their annual reporting amount (ARA) for each chemical in use. EPA defines an ARA as "the combined total quantity [of a particular chemical] released at the facility, treated at the facility, recovered at the facility as a result of recycling operations, combusted for the purpose of energy recovery at the facility, and amounts transferred from the facility to off-site locations for the purpose of recycling, energy recovery, treatment, and/or disposal."[16] Under a more detailed reporting form, Form R (EPA 9350-1), facilities must annually provide specific information about a particular chemical, including releases and waste management activities, such as recycling, treatment, and combustion practices.[17] Release information includes total quantities of each chemical that are released in the form of air emissions, discharges into land and water bodies, as well as amounts subject to on and off-site treatment.[18] Form A (EPA 9350-2), the less detailed reporting form, may include information for up to four chemicals per form, and requires facilities to list the facility location along with the chemicals that the facility manufactures or uses.[19] Thus, the new TRI Rule makes it easier for facilities to qualify for the less demanding Form A reporting form, which in effect reduces the public's access to information under EPCRA and PPA.

Comparison between the new TRI Rule and the former rule will further highlight the significant distinctions. Under the former TRI rule, facilities had to complete Form R reports for non-PBT chemicals with ARA that exceeded over 500 pounds per year.[20] Non-PBT chemicals are those that EPA has identified as non-persistent, non-bioaccumulative, and non-toxic.[21] Also, the former TRI rule facilities that produced or handled chemicals, identified by the EPA as PBT (persistent, bioaccumulative, or toxic) chemicals, had to use the more detailed R forms for each PBT chemical.[22] At the time, EPA determined that the Form A "range report" would only indicate an ARA of zero to 500 pounds for PBT chemical, and would thus be inadequate to provide for "meaningful analysis on PTC chemicals."[23]

Under the new TRI Rule, EPA increases the ARA threshold eligibility for the less-detailed Form A. Now, a facility with ARA for a particular non-PBT chemical of 5,000 pounds or less, with releases less than 2,000 pounds for each chemical, may use the more streamlined Form A.[24] In addition, for the first time in the history of TRI Program, facilities may use Form A for PBT chemicals in certain situations. For example, if the facility has no releases or disposals of the PBT chemical, and recycles or treats less than 500 pounds of the PBT chemical per year, it may be eligible to use Form A.[25]

The National Environmental Trust reports that under the new TRI Rule, 3,600 of the 8,000 companies that were previously required to submit Form R reports will now be eligible to submit the shorter Form A reports.[26] Not surprisingly, small businesses, which generally release lower quantities of chemicals, have hailed these less stringent reporting requirements under Form A as a welcome relief in reducing their paperwork costs.[27] Moreover, federal officials believe that the new reporting requirements will encourage smaller business to reduce the amount of chemicals that they produce and release, while saving millions in what they deem to be unnecessary regulatory filings.[28]

Although I support cutting bureaucracy in favor of governmental efficiency, the new TRI Rule is a step backwards and thwarts both regulatory research efforts as well as the public's access to important information on chemical usage and releases.[29] Congress created the TRI Program to empower citizens and help encourage industries to be conscientious neighbors by adopting safer and more effective waste management practices. In terms of bargaining power, every-day citizens do not necessarily possess meaningful leverage when it comes to convincing businesses to improve their waste management practices.[30] However, citizen awareness can greatly affect a company's public image. Thus, accurate and timely information about a facility's waste management practices is a form of currency that ordinary citizens can use to increase their bargaining power. If negotiation in this context does not work, citizens who suffer from long- term chemical exposure are often left to pursue legal action, in which they face an uphill battle. In toxic tort cases, plaintiffs often must expend their own funds, and worse yet, face the increasingly difficult hurdle of proving causation.[31]

The new TRI Rule also raises important implications in terms of environmental justice. EPA acknowledges the "higher proportion of low-income and minority communities in close proximity" to facilities subject to TRI reporting requirements.[32] Nonetheless, EPA reasons that the changes do "not appear to have a disproportionate impact on these communities, since facilities in these communities are no more likely than elsewhere to use Form A . . . ."[33] Along the same lines, EPA distinguishes the TRI information program from a direct control regulation, and as a result, the TRI Program will only have the potential to "indirectly lead to improved health and environmental conditions" within the community.[34] This reasoning does little to assure the communities living next to 3600 TRI facilities that now only have to report their locations and the names of the chemicals that they use.

On the flip-side, corporate accountability serves as yet another reason for continuing the former TRI rule reporting thresholds. Disturbing emission reports can serve as a red flag for corporate mismanagement, as they did for Tyco. In March of last year, Senator Jim Jeffords of Vermont and Julie Fox Gorte of the Clavert Group, an invest firm that offers expertise in socially responsible investing, explained that Tyco's disturbing annual TRI release reports led the Clavert Group to sell their Tyco stock before the company's portfolio succumbed to the ills of corporate scandal.[35] Therefore, if investors agree with Jeffords and Gorte that "sound investment requires sound information,"[36] they should think twice about the new TRI Rule.

Additionally, we live in a society that is heavily dependent on the manufacture and use of chemicals, the effects of which we have yet to study or understand.[37] Approximately 100,000 chemical substances are currently registered for commercial use in the United States, with between 800 to 1,000 new chemicals entering the market each year.[38] Studies have shown that for over 75% of these chemicals, no toxicity research is available.[39] Whether we like it or not, most research often occurs long after the chemicals have entered the marketplace.[40] Although EPA's Toxics Release Inventory (TRI) does not directly address the shortcomings of toxicity research, it has proven to be an effective tool to inform the regulatory community and public just how the industry manages chemical substances. It will not unduly burden businesses to continue complying with former reporting thresholds, thresholds that have been in force for over a decade.[41] However, if the new TRI Rule stays on the books, it will undoubtedly and unjustifiably burden research efforts and the public's right to access information under EPCRA and PPA.

[1] 71 Fed. Reg. 76,932 (Dec. 22, 2006) (to be codified in 40 C.F.R. pt 372) (noting that dioxin and dioxin-like compounds are not eligible for the reduced reporting burden).

[2] 42 U.S.C. § 11023 (1986). Congress passed EPCRA, in part, as a reaction to the 1984 disaster in Bhopal, India, in which over 2,500 people died as a result of a methyl isocyanate gas leak. A Union Carbide pesticide plant in Institute, W.Va. also experienced a smaller leak in 1985, which resulted in over 100 residents seeking treatment hospital. For more information about the events leading up to the EPCRA, see Sidney M. Wolf, Fear and Loathing About the Public Right to Know: The Surprising Success of the Emergency Planning and Community Right-to-Know Act, 11 J. Land Use & Envtl. L. 217, 218 (1996).

[3] 42 U.S.C. § 13106 (1990) (requiring each owner or operator of a qualifying facility to file an annual toxic chemical release form under EPCRA § 313, 42 U.S.C.A. § 11023).

[4] TRI Final Rule, supra note 1, at 76,933.

[5] Id.

[6] EPA, TRI Fact Sheet, http://www.epa.gov/tri/tri_program_fact_sheet.htm, (last visited Jan. 15, 2007).

[7] 42 U.S.C. § 11023(h).

[8] TRI Final Rule, supra note 1, at 76,933.

[9] 42 U.S.C. § 11023(g)(1)(C)(i)-(ii).

[10] Id. § 11023(g)(1)(C)(iii)-(iv).

[11] Id. §13106(b)(1), (b)(2), (b)(7).

[12] Id. § 13106(b)(6).

[13] TRI Final Rule, supra note 1, at 76,933.

[14] 42 U.S.C.A. § 11023(f)(A), (f)(B)(iii) (providing a 10,000 pound threshold for each toxic chemical used at a facility and a 25,000 pound threshold for each toxic chemical manufactured or processed at a facility).

[15] EPA, TRI Fact Sheet, supra note 5.

[16] TRI Final Rule, supra note 1, at 76,936.

[17] Id. at 76,932; see also EPA, Final TRI Burden Reduction Rule, http://www.epa.gov/tri/tridata/modrule/phase2/forma.htm (last visited Jan. 15, 2007) (comparing Form R to Form A, and providing links to samples of each form).

[18] TRI Final Rule, supra note 1, at 76,934.

[19] Id.; EPA, Final TRI Burden Reduction Rule, http://www.epa.gov/tri/tridata/modrule/phase2/forma.htm (last visited Jan. 15, 2007).

[20] Id. at 76,933, 76,937 (note that under both the new and the old TRI rules, the facility must also manufacture, process, or use no more than 1,000,000 pounds of either PBT chemicals to be eligible to use the Form A).

[21] Id. at 76,935 n.1.

[22] Id. at 76,932.

[23] Id. at 76,934 (citing to Persistent Bioaccumulative Toxic (PBT) Chemicals 64 Fed. Reg. 58,733 (Oct. 29, 1999).

[24] Id. at 76,932, 76,934 (noting that the facility will not be eligible for Form A if it releases more than 2,000 pounds of the 5,000 AMA total for non-PBT chemicals).

[25] Id. at 76,932.

[26] Robert Cohen, EPA Eases Rules on Toxic Releases: Lautenberg, Others Vow Reversal, The Star Ledger, Dec. 19, 2006, 2006 WLNR 22123220.

[27] Mark Clayton, Critics Call EPA's New Rule a Loophole for Big Business, Christian Sci. Monitor, Dec. 20, 2006, at 2.

[28] Id.; see also TRI Final Rule, supra note 1 (noting that EPA estimates that businesses will save a total of .9 million).

[29] See Relaxed Federal Toxic Reporting Affects Washington Residents, U.S. State News, Dec. 22, 2006, 2006 WLNR 22411772 (noting Ecology Director Jay Manning's comments that "Washington state will lose valuable information regarding up to 1.5 million pounds of toxic releases annually in and near communities throughout the state" and the "relaxed EPA reporting requirement denies our citizens information they have a right to.").

[30] See Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In, 102-103 (Bruce Patton 2d ed., 1991) (providing an example of a negotiation between a large industry and a smaller town, which concerned the amount of taxes the industry paid to the town).

[31] See Margaret A. Berger, Eliminating General Causation: Notes Towards a New Theory of Justice and Toxic Torts, 97 Colum. L. Rev. 2117, 2121-22 (1997). In toxic tort cases, it is exceedingly difficult for plaintiffs, who have experienced adverse health effects due to chemical exposure, to prove causation, both general and specific. General causation refers to a chemical's capability to cause the adverse health effect(s) experienced by the plaintiff, while specific causation requires proof that exposure to the chemical specifically caused the adverse health effect(s) in the plaintiff. In addition, to prove causation, plaintiffs must often rely on epidemiological research, which may involve multiple uncertainties due the lack of knowledge regarding the complex and ill-understood biological processes of human beings, the latent effects of long-term exposures, and the influence of confounding factors that may also cause or exacerbate the adverse health effects.

[32] TRI Final Rule, supra note 1, at 36,944.

[33] Id.

[34] Id.

[35] Jim Jeffords and Julie Fox Gorte, A Dark Cloud Over Disclosure, N.Y. Times, Mar. 10, 2006, at A1.

[36] See id (explaining that the TRI reports represent another tool by which investors can investigate the management practices of companies).

[37] See Wendy Wagner, Choosing Ignorance in the Manufacture of Toxic Products, 82 Cornell L. Rev. 773, 780-783 (1997) (referring to the prevalence of "preventable scientific uncertainty" within the chemical industry).

[38] Carl Cranor, Scientific Inferences in the Laboratory and the Law, 95 Am. J. of Pub. Health, Supp 1, at S126 (2005).

[39] Id.

[40] Id.; see also Jennifer 8. Lee, E.P.A. Orders Companies to Examine Effects of Chemicals, N.Y. Times, Apr. 15, 2003 at F2 (noting that EPA has required the chemical industry to study the exposure risks of perfluorooctanoic acid, a chemical commonly used in the production of products such as Teflon and Gore-Tex, which resists degradation and is turning up in human blood samples and food supplies in regions as far away as the Artic Circle). The author recognizes that under § 2604 of the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692 (1976), Congress requires manufacturers of new chemicals to file a pre-manufacture notices. The pre-manufacture notice allows EPA to screen out unreasonable risks to public health and the environment, but has not been an effective tool in encouraging companies to prevent "preventable scientific uncertainty." See supra note 37, at 782 (explaining that a full assessment of toxicity requires short-term and long term research); see also Amy Cortese, Inside the News: Will Environmental Fear Stick to DuPont's Teflon?, N.Y. Times, Jul. 24, 2005, § 3 at 34 (quoting Boston University School of Public Health Professor David M. Ozonoff, "The system [that EPA uses to police industrial chemicals] does not work, and our blood and bodies and tissues are proof.").

[41] See id. at 76,933 (noting that EPA introduced the Form A reporting form in 1994.)