will result in releases going unreported.  Only facilities that would
have reported zero for disposal or other releases on a Form R, in
addition to meeting other conditions, will be able to use the Form A for
a PBT chemical.  Facilities that would have reported a non-zero quantity
of disposal or other releases had they filed a Form A will not meet the
eligibility criteria for the Form A and thus will be required to file a
Form R instead.

e. Impact on public health

Topic Comment Summary (by Abt):

Seventeen unique comments representing eighteen commenters expressed
general opposition to the proposed option for PBT chemicals because of
the potential impact on public health. Many commenters wrote that the
proposal would lead to increased risk from PBTs; given the serious
health risks from these chemicals, it makes no sense to have any
reduction in reporting requirements. One commenter wrote that persistent
organic pollutants are an environmental "sleeper" issue-they are going
to cause more trouble in the future for human health, not less, and they
will not go away just because we create less paperwork about them. Many
commenters mentioned the increased risks to children and developing
fetuses.

The Minnesota Pollution Control Agency wrote that this proposal makes
little sense at a time when researchers at two major laboratories have
found an average of 200 industrial chemicals and pollutants in umbilical
cord blood of 10 babies born in August and September of 2004 and when
the US Centers for Disease Control and Prevention recently issued its
Third National Report on Human Exposure to Environmental Chemicals (July
2005) which details exposure levels to 148 different environmental
chemicals, including many that are tracked through the TRI.

The Waterkeeper Alliance wrote that there is absolutely no justifiable
rationale to support EPA's proposal to reduce industry's obligation to
provide information about the most dangerous class of industrial
chemicals. EPA has acknowledged that PBTs are some of the most hazardous
industrial byproducts because they persist in the environment and build
up in the human body. They are highly toxic, long-lasting substances
that can build up in the food chain to levels that are harmful to human
and ecosystem health. PBTs are associated with a range of adverse human
health effects, including effects on the nervous system, reproductive
and developmental problems, cancer, and genetic impacts. PBTs have the
ability to travel long distances, to transfer rather easily among air,
water, and land, and to linger for generations in people and the
environment. The commenter claims that It is inexcusable for EPA to
finalize a rule that would in effect thwart the public's ability to
monitor PBT chemicals in the name of "reducing the burden" to facilities
responsible for emitting and reporting information on these dangerous
toxics.

Several State Attorneys General wrote that EPA has calculated that 98
percent of the forms that would qualify for Form A under the proposed
rule and which reported positive amounts of production-related waste
other than releases were for (1) lead and lead compounds, (2) polycyclic
aromatic compound ("PACs"), and (3) mercury and mercury compounds. The
commenter believes that given the well-documented and widespread health
impacts, both local and regional, of these chemicals, reduced reporting
cannot be justified.

Response:

EPA disagrees with commenters that allowing From A for PBT chemicals
will have a negative impact on public health.  Only facilities that
would have reported zero for disposal or other releases on a Form R, in
addition to meeting other conditions, will be able to use the Form A for
a PBT chemical.  Therefore, this approach will not allow any releases to
the environment to go unreported on the Form R.  In addition, by
limiting the use of Form A to those PBT chemicals with zero releases,
EPA is providing incentive for facilities with small releases to reduce
them to zero.

f. Data needed to support pollution reduction efforts

Topic Comment Summary (by Abt):

Three commenters expressed general opposition to the proposed option for
PBT chemicals because of the potential negative impact on pollution
reduction efforts that are supported by TRI data. The Minnesota
Technical Assistance Program wrote that this proposal would reduce the
number of Form Rs submitted in Minnesota for PBT chemicals by
approximately 20% and eliminate TRI data for a number of facilities,
affecting the ability to flag these facilities for possible pollution
prevention assistance.

Similarly, the National Pollution Prevention Roundtable wrote that many
state programs utilize TRI data to identify P2 opportunities. These
include small quantities (less than 500 pounds) of PBT chemicals. These
programs will no longer have access to this data if the reporters are
allowed to use Form A instead of Form R to report these PBTs.

Response:

The Agency believes that this approach will benefit pollution prevention
efforts.  By allowing Form A for PBT chemicals with zero releases, EPA
is providing incentive for facilities to eliminate releases by moving
toward source reduction or more favorable types of waste management such
as recycling and treatment.  In addition, by limiting total waste
management to 500 pounds or less, this approach will provide incentive
to reduce the entire amount of waste generated at a facility.

g. No releases does not necessarily mean no risk

Topic Comment Summary (by Abt):

Sixteen unique comments representing 25 commenters expressed general
opposition to the proposed option for PBT chemicals because of the
potential data loss, specifically mentioning the fact that even
facilities with no releases present a risk to their communities. The
North American Hazardous Materials Management Association stated that
Form R was expanded in 1991 to include data on other methods of toxic
chemical waste management specifically to recognize that preventing
pollution involves a great deal more than just reducing or eliminating
the release of a toxic chemical. The Minnesota Pollution Control Agency
stated that since approximately 75% of the reported quantities of PBTs
are sent offsite for treatment, energy recovery or recycling, they still
certainly pose a risk for accidental release in surrounding communities
even if there are no regular releases associated with the manufacturing
processes in which they are used or are coincidentally manufactured.
Several commenters also mentioned the risk from transporting PBTs and
also the risk to workers. OMB Watch wrote that the EPA proposal would
allow facilities to withhold details of PBT quantities from the agency
and the public, merely because they remained on-site or were captured
and shipped to another facility. However, it is incorrect to believe
that PBTs are safe just because they have not been released to the
environment by the facilities during normal operation. Storage and
disposal of PBTs still pose a significant health risk to workers and
nearby communities, a health risk that should be fully tracked by EPA.
There are many examples of workers being exposed to chemicals even when
there are no releases to the environment. EPA's proposal would leave
workers at manufacturing facilities around the country, as well as at
recycling or disposal facilities, less aware of the risks associated
with PBT chemicals located onsite.

The Socially Responsible Investment Coalition wrote that, due to their
inherent characteristics, even small releases of PBTs can cause
catastrophic environmental impacts. Scientists are routinely discovering
adverse health effects resulting from infinitesimally small exposures to
PBTs and other chemicals of concern.

Several State Attorneys General wrote that among the reasons why
communities remain interested in TRI data even when there are no
releases is for emergency planning. Form R information concerning the
maximum amount of a chemical on site during the year, or the amount of
chemical waste that may be retained on site for recycling, energy
recovery or destruction, helps communities understand what amounts of
toxic chemicals could be released from local facilities in the event of
spills, accidents and natural disasters like Hurricane Katrina so that
they can prepare adequate response measures in advance, or react
knowledgeably afterward.

OMB Watch also wrote that the agency also fails to consider the
importance of accurately tracking these quantities of extremely
dangerous chemicals for emergency response. As mentioned previously, in
the wake of Hurricanes Katrina and Rita, the TRI was the primary tool
used by first responders to map potential exposure risks and identify
possible toxic hotspots. Firefighter and emergency medical personnel
also need the most accurate information on toxic chemicals located at a
facility. The commenter believes that EPA's proposal would result in
knowing less about quantities of PBTs stored at facilities around the
country as well as shipments from and to disposal or treatment
facilities.

Response:

Several commenters oppose the rule because the use of Form A for a PBT
chemical could allow certain activities to go unreported on a Form R
such as accidental releases, storage and disposal, transportation of the
chemical and other activities that could pose a risk to workers and the
public.  EPA would like to remind commenters that facilities cannot have
any releases or disposal of a PBT chemicals and still use the Form A.
For example, if a facility transfers a PBT chemical off-site for
disposal in a landfill, it cannot use Form A for that chemical because
it did not meet the zero release criterion for the use of Form A.

Commenters expressed concern about the loss of data that can be used for
emergency planning purposes.  When a facility submits a Form A, data
users will still know, among other things, the location of the facility,
the chemical identity and that the chemical was either manufactured,
processed or otherwise used above the threshold quantity.  In response
to commenters’ concerns about being prepared for emergencies, EPA
points out that there are sections of EPCRA that specifically address
emergency planning and notification.  These sections of EPCRA provide
important information to responders and communities.

With regard to comments about data loss, EPA does not believe that
allowing Form A for PBT chemicals will result in an unacceptable
reduction in the data reported to EPA.  As EPA stated in the proposed
rule, an estimated 2,700 PBT chemical forms would qualify for Form A
under the rule.  Of those 2,700 forms that reported zero releases,
approximately 2,100 reported zeros for other waste management quantities
and approximately 600 reported non-zero amounts in at least one of
Section 8.2 through 8.8 of the Form R.  For the 2,100 forms with zero
releases and zero other waste management, the actual reduction in data
obtained will be minimal.  For all 2,700 forms, data users will know
that the facility had zero releases to the environment of the PBT
chemical and between 0 and 500 pounds of other waste management.  Thus,
the Form A serves as a range report, which informs the public and other
data users that other waste management of the PBT chemical is 500 pounds
or less.

EPA agrees with the State Attorneys General who state that a large
majority of PBT Form As would be submitted for lead, mercury, and PACs.
The PBT chemical forms that report other waste management are primarily
forms for lead (including lead compounds), mercury (including mercury
compounds), and Polycyclic Aromatic Compounds (PACs) and
benzo(g,h,i)perylene.  For lead and mercury the only possible waste
management activity other than release is recycling.  Therefore, a Form
A for lead or mercury indicates that those chemicals had zero releases
and between 0 and 500 pounds of recycling.  The majority of  PACs and
benzo(g,h,i)perylene are either treated for destruction or burned for
energy recovery, hence, a Form A for these chemicals will provide a 500
pound range for those waste management activities.

iii. Lessens incentive for companies to improve environmental
performance

Topic Comment Summary (by Abt):

Three commenters expressed general opposition to the proposed option for
PBT chemicals because it would reduce the incentives for companies to
improve their environmental performance. The New York State Department
of Environmental Conservation wrote that in Section III.C.2.c, in
discussing other potential impacts of Form A eligibility for PBT
chemicals, EPA states that the "Agency feels this reporting option will
provide an incentive to TRI facilities to eliminate releases and reduce
the need for other waste management..." The commenter asserts that EPA
provides no data or analyses to support this opinion and it is difficult
to imagine that facilities would find it more cost effective to
eliminate releases and/or change waste management practices than to
simply file Form R.

Several State Attorneys General wrote that EPA has not evaluated, but
should evaluate, the extent to which the proposed changes to the rule
will weaken incentives for companies to reduce releases and use of toxic
chemicals. In the past, TRI reporting requirements have induced
companies to reduce their releases and use of toxic chemicals by
billions of pounds, but the proposed rule would weaken that incentive by
allowing less reporting. Companies that previously kept their use of
non-dioxin PBT chemicals to less than the reporting threshold of 10 or
100 pounds to avoid detailed reporting could now begin to use up to
1,000,000 pounds without detailed reporting, so long as they met the 500
pound PRA threshold. EPA contends that the proposed changes to PBT
reporting provide incentives for facilities to lower their waste
management totals under the new threshold. But EPA provides no economic
analysis demonstrating any such incentive effect. The commenter further
provides that the proposed rule is likely to provide minimal burden
reduction, if any. As a result, it is likely that any incentive effect
arising out of that burden saving would in fact be de minimis. Moreover,
the history of TRI demonstrates that it is disclosure of toxic chemicals
amounts, not concealment, that serves as a powerful incentive to reduce
toxic chemical use and release. The proposed rule, by allowing
facilities to conceal the amount of waste PBT chemicals on site, would
thus weaken, not strengthen, the pollution-reduction incentive.
Companies that are currently reporting low amounts of other
production-related waste would be able to increase those amounts by
orders of magnitude - for example, from 10 pounds to 450 pounds -
without disclosing that increase. Accordingly, EPA's finding that the
proposed change would create pollution-reduction incentives lacks a
basis in reason or the record.

Response:

The Agency disagrees with commenters that the rule will not provide
incentive for companies to improve their environmental performance.
Rather, EPA believes that this approach will provide incentive for
reporting facilities to reduce their quantities of waste in order to be
eligible for Form A.  By allowing Form A for PBT chemicals with zero
releases, EPA is providing incentive for facilities to eliminate
releases by moving toward source reduction or more favorable types of
waste management such as recycling and treatment.  In addition, by
limiting total waste management to 500 pounds or less, this approach
will provide incentive to reduce the entire amount of waste generated at
a facility.

The Agency would like to clarify the difference between the chemical
thresholds and the ARA.  The chemical thresholds are a trigger for
reporting.  For the PBT chemicals subject to this rule, the thresholds
are either 10 or 100 pounds.  A facility must submit a Form R or Form A
to EPA if it manufactures, processes, or otherwise uses the chemical
over the specified threshold and meets the other reporting criteria.
The PBT ARA is used to determine whether a facility that exceeds the 10
or 100 pounds thresholds and otherwise subject to reporting will qualify
for the Form A alternate threshold of 1 million pounds.  A facility that
exceeds a threshold for a PBT chemical but is below the PBT ARA of 500
pounds of total waste management can apply the 1 million pound alternate
threshold to that PBT chemical.  If the chemical is manufactured,
processed or otherwise used below the alternate threshold then the
facility can use Form A, otherwise it must file a Form R.  The Form A
represents that the facility did not exceed the alternate threshold,
that the facility did not dispose of or release any of the PBT chemical
and that the waste management of that chemical was within a range of
zero to 500.

iv. Minimal burden reduction

Topic Comment Summary (by Abt):

Five commenters expressed general opposition to the proposed option for
PBT chemicals because it provides minimal burden reduction, and does not
justify the loss in publicly-available data. The Natural Resources
Defense Council wrote that, in the case of facilities that neither
release nor have other waste management quantities of PBT chemicals, it
would still be beneficial for local communities to have access to such
information. EPA has acknowledged that "the burden of completing Form R
for such facilities is small" (70 Fed. Reg. 57839), which disproves any
need for burden reduction for these facilities. Even under current
methodologies the average cost savings per facility would be only
$1,035. The commenter believes that It is obvious from EPA's own
estimates that the burden reduction benefit of the proposed rule is
rather small and does not justify the expected loss of waste management
information.

Several State Attorneys General wrote that EPA notes that the bulk of
the forms eligible for revised reporting of nondioxin PBT chemicals
under the proposed rule - 2,085 forms out of 2,703, or approximately 77
percent -report zero quantities of releases and zero quantities of other
production-related waste. As a result, the burden relief from the
proposed rule for these reporting entities would be minimal, since, as
EPA admits, "the burden of completing Form R for such facilities is
small. The commenter further states that EPA also believes that many of
these facilities would continue to use Form R for the same reason. Since
EPA provides no convincing justification for its reversal in position,
and since by EPA's own admission most of the facilities in this category
would receive little benefit from the proposed change, EPA should
withdraw the proposed rule.

Response:

EPA disagrees with commenters that the rule will result in minimal
burden reduction.  Facilities that use Form A for a PBT chemical will
save an estimated 15.5 hours of burden per Form A submitted instead of a
Form R.  From the standpoint of total burden savings, the Agency
estimates that the 2,360 facilities eligible for this option will save
approximately 36,500 hours of reporting burden.  One commenter suggests
that burden savings is minimal because the majority of facilities
eligible for this option have no waste management quantities to report
(i.e., zeros in Sections 8.1 through 8.8).  Facilities that report all
zero for their waste management quantities will still see burden savings
from this rule.  These burden savings would be realized because the
facility would no longer have to complete data elements such as the
Production Ratio in Section 8.9 or the maximum amount of the TRI
chemical on-site at any one time in Part II, Section 4 of the Form R.

v. Other

Topic Comment Summary (by Abt):

Four commenters expressed general opposition to the proposed option for
PBT chemicals for reasons not specified above. One commenter wrote that
the proposal provides abundant opportunities for unreported releases and
the facilitation of poor industry management practices. The
Environmental Integrity Project wrote that the TRI data shows that air
emissions of PBT's have increased since 2000, more should be done to
reverse that trend. EPA has not seriously considered whether the
exemptions it proposes would give companies an incentive to hide, rather
than report, small but hazardous releases of PBT's to avoid the full
disclosure under Form R that would otherwise be required. Another
commenter wrote that EPA is sending a dangerous message to the public
that it cares more about aiding and abetting companies with
irresponsible and reckless practices than about public or environmental
health. The International Relations Center wrote that the proposal would
set a bad example, leading to under-reporting in Mexico.

Response:

The Agency disagrees with commenters that the rule will not provide
incentive for companies to improve their waste management practices.
Rather, EPA believes that this approach will provide incentive for
reporting facilities to reduce their quantities of waste in order to be
eligible for Form A.  By allowing Form A for PBT chemicals with zero
releases, EPA is providing incentive for facilities to eliminate
releases by moving toward source reduction or more favorable types of
waste management such as recycling and treatment.  In addition, by
limiting total waste management to 500 pounds or less, this approach
will provide incentive to reduce the entire amount of waste generated at
a facility.

One commenter suggests that facilities may hide small releases by using
Form A for a PBT chemical.  In regard to this comment the Agency would
like to emphasize that only facilities that would have reported zero for
disposal or other releases on a Form R, in addition to meeting other
conditions, will be able to use the Form A for a PBT chemical.
Therefore, this approach will not allow any releases to the environment
to go unreported on the Form R.

C. Comments on whether any of the chemicals potentially eligible for
this option are of sufficient level of concern so as to justify EPA
excluding them from eligibility from Form A

Topic Comment Summary (by Abt):

Four commenters responded to the question of whether any of the PBT’s
potentially eligible for Form A reporting are of sufficient level of
concern so as to justify EPA excluding them from eligibility.  One
commenter, the Edison Electric Institute (EEI), said they do not believe
that any chemical (whether PBT or non-PBT) should be automatically
excluded from Form A reporting eligibility.  Three commenters (the State
Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM, VT, and WI;
American Public Health Association (APHA) and Children's Environmental
Health Network (CEHN); and Columbia River Inter-Tribal Fish Commission)
disagreed, commenting that PBTs should not be eligible for Form A
reporting.  APHA and CEHN indicated that any substance that is
persistent, bioaccumulative or toxic warrants sufficient concern to be
excluded from eligibility for the shorter reporting requirements, and
that if basic human developmental effects information, especially
neurodevelopmental information, of a chemical is not public, that
chemical warrants a sufficient level of concern to be excluded from
eligibility for lower reporting requirements.

Response:

As stated in the proposed rule, EPA is not including dioxin and
dioxin-like compounds in the final rule.  Because of the high toxicity
of some dioxin and dioxin-like compounds and the wide variation in
toxicity between forms of dioxin, EPA proposed to add toxic equivalency
(TEQ) reporting for dioxin and dioxin-like compounds in March, 2005 (70
FR 10919).  Until the Agency has the appropriate data collected in
conformance to the final TEQ rule it will wait to decide whether dioxin
and dioxin-like compounds should be eligible for Form A.

With regard to the PBT chemicals that are eligible for Form A, the
Agency believes that it is appropriate to allow Form A for these
chemicals if they meet the PBT ARA.  EPA would like to reiterate that
only facilities that would have reported zero for disposal or other
releases on a Form R, in addition to having 500 pounds or less of total
other waste management, will be able to use the Form A for a PBT
chemical.  Facilities that do not meet these criteria will be required
to file a Form R instead.  Because of the strict criteria that must be
met in order to use Form A, the Agency believes it is appropriate to
allow the use of Form A for PBT chemicals.

i. Approach to defining PBT Reportable Amount (PRA)

Topic Comment Summary (by Abt):

Three commenters discussed the approach to defining PBT Reportable
Amount (PRA), specifically the inclusion of section 8.8 quantities. The
State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM, VT,
and WI noted that the facility's PRA will be the same whether the zero
value for nonproduction-related releases from section 8.8 are included
or not. The Department of Energy (DOE) and the National Petrochemical
and Refiners Association (NPRA) suggest that section 8.8 quantities
should not be included in the definition of PRA. DOE indicated that
according the proposal, the quantity from 8.8 is already required to be
zero, so that deleting section 8.8 would not change the quantity in the
PRA. Both DOE and NPRA wrote that removing section 8.8 from the PRA
would make the approach to defining PRA and ARA more consistent, since
the ARA for non-PBT chemicals does not currently include section 8.8.

Response:

The Agency has decided to finalize the rule as proposed by including
Section 8.8 in the PBT ARA.  If Section 8.8 were not included in the PBT
ARA it would be possible for other waste management quantities exceeding
500 pounds to go unreported.  The Agency believes that local communities
may want to track large quantities and thus will include Section 8.8 in
the PBT ARA.

Two commenters suggested that EPA exclude Section 8.8 from the PBT ARA
to make it consistent with the ARA used to determine Form A eligibility
for non-PBT chemicals.  The Agency agrees that the PBT and non-PBT ARAs
should be consistent and therefore has decided to modify the ARA for
non-PBT chemicals to include Section 8.8.  EPA does not expect the
inclusion of Section 8.8 quantities in the Form A threshold
determination for PBT chemicals to add a significant amount of burden to
those facilities considering Form A.  First, less than 4% of all PBT
chemical Form Rs have a value greater than zero in section 8.8.  In
addition, because Section 8.8 is restricted to quantities involving
remedial actions, catastrophic events, or one-time events not associated
with production processes, EPA does not expect Section 8.8 quantities to
factor into any facility's Form A eligibility determinations on a
consistent, annual basis.

ii. Comments on PRA threshold

Topic Comment Summary (by Abt):

Seven commenters expressed suggestions on the PBT ARA threshold, or on
the release threshold for PBT’s. The Small Business Administration
(SBA) noted that EPA did not analyze alternate ARA’s, and they
suggested an increase in the ARA from 500 lbs to 5,000 lbs. They
indicated that this revision can provide burden relief for another 477
Form Rs (making a total of 3180 eligible Form Rs) without compromising
community right-to-know. The Association Connecting Electronics
Industries (IPC), National Association of Manufacturers (NAM), and the
Graphic Arts Coalition also suggested that the PRA should be increased
to provide more burden reduction and promote pollution prevention by
rewarding facilities that minimize their waste through increased
recycling. They noted that analysis of SIC 36 reports for lead and lead
compounds for RY2003 indicated that under the proposed PRA, only 50% of
facilities reporting zero releases would be eligible to use Form A. If
the PRA were increased to 3,000 lbs, 89% of facilities with zero
releases would qualify for Form A burden relief, and that a 5,000 lb PRA
would provide relief to 92% of facilities with zero releases. SBA, IPC,
NAM, the Graphic Arts Coalition, and the National Federation of
Independent Business (NFIB) all noted an analysis of the 2002 PBT TRI
data performed by the SBA Office of Advocacy, showing that raising the
PRA threshold from 500 lbs to 5000 lbs would retain approximately 99.9%
of the waste data currently reported. Therefore raising the PRA is
within EPA's regulatory authority.

Society of Glass and Ceramic Decorators (SGCD) and the National Council
for Air and Stream Improvement (NCASI) both made comments on the 0 lb
release threshold, and suggested an increase in this threshold. NCASI
wrote that the proposed zero release requirement for use of Form A will
essentially prohibit its use by facilities with fuel burning equipment
for most of the PBTs. They suggest that EPA set a non-zero value for PBT
releases for Form A eligibility, such as 10 lbs (the reporting threshold
amount for most PBTs) of total releases to the environment. SGCD noted
that the zero total release requirement restricts the burden reduction
benefit to 35% of SIC 32 filers while an expansion of this Form A
threshold to 10 pounds of both on- an off-site release would provide
burden reduction for another 18% of SIC 32 filers. SGCD wrote that 57
companies in SIC 32 reported one pound of off-site release, and zero
on-site releases, and that these companies should be able to use Form A
for their zero lbs of on-site releases.

Response:

EPA disagrees with commenters who state that the 500 PBT ARA should be
raised or that a small amount of releases should be allowed under this
approach.  The zero release limit was suggested by commenters in the
November 2003 Stakeholder Dialogue and other venues who pointed out that
there are a number of facilities that submit Form Rs that have zero
total disposal or other releases in Section 8.1 of Form R. Some of the
stakeholders expressed the opinion that the Agency should develop a
simplified form for these reports.  EPA notes that many reporters with
zero total disposal or other releases in Section 8.1 still report
positive quantities in sections 8.2 through 8.8. However, EPA believes
that communities and other users of TRI information are less concerned
about small volumes of on-site waste management when a facility is able
to achieve zero release of these chemicals. EPA has thus determined that
it is appropriate to allow Form A for such facilities, provided they
have zero disposal and other releases for a particular PBT chemical.

By setting the ARA to 500 pounds, EPA has balanced burden reduction with
the needs of data users who use TRI information for tracking trends in
recycling, treatment and energy recovery.  Further, the Agency believes
that this approach will comply with the goals of the PPA by providing
incentive to facilities without any releases to lower their other waste
management totals to 500 pounds or less so they can qualify for this
option.

iii. Comments on specific PBT chemicals

Topic Comment Summary (by Abt):

Four commenters discussed the eligibility for Form A reporting of
specific PBT chemicals. One environmental consultant commenter said they
agree that allowing Form A for facilities that primarily use lead (for
example in soldering) is a valuable burden reduction since the releases
of lead are typically minimal as are the quantities of lead in stores.
The Aluminum Association commented on dioxin, suggesting that EPA should
clarify the rule regarding dioxin compounds expeditiously. They noted
that in the proposal, EPA states that the proposed PBT reporting
provisions for the short form do not apply for dioxin and dioxin
compounds because the Agency is still addressing the rulemaking for TEQ
reporting for those substances.

The US PIRG Education Fund commented on lead, indicating that lowering
the lead threshold in 2001 triggered more facilities to report their
lead releases, providing communities with more information, and that EPA
should learn from that experience and lower reporting thresholds, not
raise them. One submission from the State Attorney Generals of NY, CA,
CT, IL, IA, MD, MA, NH, NJ, NM, VT, WI commented on lead, PAC’s, and
mercury. They wrote that lead is a potent neurotoxin, and to help health
departments, doctors, medical researchers and citizens to minimize lead
exposures, these groups need to know where lead is used, where lead
releases are coming from and where other lead waste is generated. They
also noted that EPA has not explained why reporting thresholds of 10,000
or 25,000 pounds were too high in 2001, but a reporting threshold of
1,000,000 pounds is acceptable in 2006. EPA contends that the "most
common scenario" for lead reporters with zero releases but positive
amounts of other waste management quantities is that the reporters "send
lead waste offsite to a recycler," and EPA needs either to confirm that
all of these facilities do send their lead waste to off-site recyclers
or to add a discussion regarding what facilities do with their lead
waste if they do not send it to off-site recyclers. EPA also needs to
address the fact that even if all facilities do follow this practice
today, they may not do so in the future, undermining the support for the
proposed rule. The Attorneys General also wrote that while the national
figure of percent of pounds of lead recycling lost (0.0084%) is small,
this loss may be unevenly distributed, creating "blind spots" where
reporting on significant amounts of lead in a particular community would
disappear. Nor does the national figure indicate whether the rule would
create any "black holes" where all or nearly all reporting of lead waste
quantities in a particular community would disappear. The States are
concerned about each one of their communities, not just national
averages.

Regarding PAC’s, the Attorneys General stated that EPA notes that
"many" combustion units that may be used to burn PACs may be subject to
the Resource Conservation and Recovery Act or the Clean Air Act, but
does not claim that all are. Unless EPA either states unambiguously that
all of these combustion units are covered by these statutes or performs
an analysis showing that incineration at these units will not result in
the release of PACs or benzo(g,h,i)perylene, it should not promulgate
the proposed rule. Also, they suggested that EPA needs to perform
localized analyses to determine whether the proposed rule will create
any "blind spots" or "black holes" with regard to PACs. PACs include
polycyclic aromatic hydrocarbons, a category of substances that include
probable and possible carcinogens. The Attorneys General stated that
their comments on mercury and mercury compounds are the same as for lead
and lead compounds.

Response:

As stated in the proposed rule, EPA is not including dioxin and
dioxin-like compounds in the final rule.  Because of the high toxicity
of some dioxin and dioxin-like compounds and the wide variation in
toxicity between forms of dioxin, EPA proposed to add toxic equivalency
(TEQ) reporting for dioxin and dioxin-like compounds n March, 2005 (70
FR 10919).  Until the Agency has the appropriate data collected in
conformance to the final TEQ rule it will wait to decide whether dioxin
and dioxin-like compounds should be eligible for Form A.

Two commenters stated that EPA should lower thresholds further for PBT
chemicals, not raise them to 1,000,000 pounds.  EPA would like to
emphasize that it will only be raising the threshold for the subset of
PBT chemicals that have zero releases and up to 500 pounds of other
waste management.  Facilities can submit a Form A for those chemicals
unless the manufacture, process or otherwise use of the chemical exceeds
1,000,000 pound in which case a Form R must be completed.

One commenter opposed the rule stating that the public must know where
lead is being used and where lead waste is being generated and released.
 In response to this comment the Agency would like to point out that
only facilities with zero for disposal or other releases, in addition to
meeting other conditions, will be able to use the Form A for a PBT
chemical.  Therefore, the public will know that the facility submitting
the Form A has no releases of the toxic chemical.  Additionally, the
public will know that the PBT chemical is being manufacture, processed
or otherwise used above reporting thresholds (i.e. 10 or 100 pounds) and
at or below 1,000,000 pounds.  Further, the Form A will also indicate
that the other waste management activities for the chemical are between
0 and 500 pounds.

One commenter requested that EPA confirm that lead reporters with zero
releases but positive quantities of other waste management are sending
their waste off-site for recycling.  For lead and mercury the only
possible waste management activity other than release is recycling.
Therefore, a Form A for lead or mercury indicates that those chemicals
had zero releases and between 0 and 500 pounds of recycling either
on-site or off-site.

Another commenter stated that EPA should not promulgate the rule if it
can not show that all combustion units used to burn PACs are regulated
under the Resource Conservation and Recovery Act or the Clean Air Act.
EPA would like to point out that combusting PACs in a combustion unit
that does not meet strict standards of efficiency (e.g., 99.99%
efficiency) will have some releases of PACs.  If the facility has
releases it will not be allowed to use Form A for PACs.

E. Comments misunderstanding the burden reduction option

Topic Comment Summary (by Abt):

Six unique comments representing ten commenters expressed
misunderstandings about the burden reduction option. One public
commenter expressed the sentiment that reporting should continue to be
required on small releases of PBTs. Another public commenter suggested
that EPA should not raise the triggering reporting threshold of PBT
chemicals from 500 pounds to 5,000 pounds. The Public Interest Research
Group in Michigan noted that TRI data was necessary to understand dioxin
releases into the environment.

The National Environmental Trust (and two others) wrote that significant
amounts of non-production transfers or on-site waste management could
escape reporting, even though releases in Section 6 [rather than Section
8.1] were zero.

Response:

The Agency would like to clarify that the Form A can be used for a PBT
chemical only if there are zero releases of that chemical and 500 pounds
or less of other waste management.  One commenter presents a scenario
where a facility has disposal quantities reportable in Section 6 of the
Form R.  In this case, the facility would not qualify for the Form A.
Under the eligibility requirements of the final rule, facilities must
have zero releases reportable in Sections 5, 6 and 8 of the Form R in
order to use the Form A for a PBT chemical. With regard to the
commenters concerns about dioxin, EPA would like to point out that the
rule does not apply to dioxin and dioxin-like compounds.

FORM A ELIGIBILITY - NON-PBT CHEMICALS

A. In support of proposed option

Summary of Comments (by Abt):

Three commenters expressed general support for expanding Form A
eligibility for non-PBT chemicals.

Response:

EPA agrees with commenters expressing support for expanded Form A
eligibility for non-PBT chemicals that Form A provides burden relief.
However, in response to concerns over the loss of detailed Form R waste
management information and in particular, the loss of local level
information on quantities released, EPA has decided to modify the
proposed 5,000-pound ARA by placing a 2,000-pound limit on releases of
non-PBT chemicals being considered for Form A.  In other words, based on
this modification to the proposal, in order for a facility to use the
Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of additional release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden reduction while at the same time providing valuable information
to the public consistent with the goals and statutory purposes of the
TRI program.

i. Acceptable data loss

Summary of Comments (by Abt):

Thirteen commenters expressed support for expanding Form A eligibility
for non-PBT chemicals because the data loss associated with the proposal
is acceptable, with less than 1% of total releases nationwide eligible
for Form A reporting.  The Society of the Plastics Industry, Inc (SPI)
stated that much more current information on individual facilities is
available to the public through other regulatory databases disseminated
through EPA's "Envirofacts" data query system and information from Form
A can be supplemented with information from other regulatory programs.
The U.S. Small Business Administration stated that the justifications
for the original institution of Form A in 1994 are directly applicable
today and justify the current proposal.  SBA also notes that they have
not heard of any TRI analyses being impaired by the current use of Form
A, as analyses naturally focus on the biggest releases.  The National
Association of Manufacturers noted that the proposal would meet the
EPA's stated goals to reduce burdens associated with TRI reporting while
providing valuable information to the public consistent with the goals
and statutory purposes of the TRI program.

Response:

While the detailed Form R information for the approximately 14 million
pounds of releases estimated by EPA to be eligible for Form A under the
proposal represents information on less than 1% of total TRI releases
nationwide, at the local level the impact is much more pronounced.  As
discussed in the preamble to the proposed rule, under the proposed
5,000-pound Form A threshold 26 TRI chemicals could move to all Form A
reporting and 655 ZIP codes with at least one TRI facility
(approximately 7% of all ZIP codes with a TRI facility) could move to
all Form A reporting.  Commenters have expressed concern about the move
to less detailed TRI information at the local level.  While some
information may be available from other sources, data users cannot look
to other readily accessible sources to replace all of the information
provided on Form R.

Comments from States and local government, environmental and
community-based organizations, university faculty and other researchers,
investors, and concerned citizens have provided estimates of the
information that may move to Form A, and in particular, the
non-reporting of Form R release details at the local level.  Comments
have included estimates of the number of release pounds and/or Form Rs
for all TRI listed non-PBT chemicals and specific non-PBT chemicals that
may no longer be available because of Form A eligibility under the
proposed rule.  While commenters recognize that the potential loss of
the more detailed Form R release information under the proposal
represents a small percentage of TRI releases nationally, it is at the
local level that a 5,000-pound Form A range of release and other waste
management information would adversely impact the ability to perform
trend analyses, monitor the performance of individual facilities, and
more generally, meet the intended purpose of the data collection to
inform the public, government, and other data users about releases of
toxic chemicals to the environment.

Accordingly, in response to concerns over the loss of detailed Form R
waste management information and in particular, the loss of local level
information on specific quantities released by media, EPA has decided to
modify the proposed 5,000-pound “Annual Reportable Amount” (ARA) by
placing a 2,000-pound limit on releases of non-PBT chemicals being
considered for Form A.  In other words, in order for a facility to use
the Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of detailed release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden relief while at the same time providing valuable information to
the public consistent with the goals and statutory purposes of the TRI
program.

Further, in response to SBA’s comment that it has not heard of any TRI
analysis being impaired by the current use of Form A, EPA notes that
commenters have discussed applications of TRI data that are impacted by
Form A.  For example, Form A impacts risk rankings, such as county-level
risk rankings, generated by the Agency's Risk Screening Environmental
Indicators (RSEI) tool.  Form A impacts RSEI rankings because RSEI does
not recognize Form A in determining the comparative risk of a chemical
release quantity because Form A does not provide specific quantitative
information.  EPA notes that while RSEI is a valuable tool, it is a
screening tool that makes assumptions about chemical toxicity and
exposure pathways that may not hold true at the local level where a more
robust risk assessment can be undertaken.  More information on the
functionality and limitations of RSEI can be found at:
http://www.epa.gov/oppt/rsei.

a. Data loss has minimal impact on RSEI scores/risk profiles

Summary of Comments (by Abt):

Two commenters expressed support for expanding Form A eligibility for
non-PBT chemicals because the impact on risk analyses is low.  The U.S.
Small Business Administration cited a study performed by E.H. Pechan &
Associates that used a health risk-based analysis that takes into
account chemical toxicity and affected population as well as volume of
chemicals released.  The study found that the 20 counties with the
largest changes in RSEI risk scores under the proposed 5,000-pound
threshold accounted for 42.8 percent of the total national change in
Form R reported risk score, and only one county, Cook County, accounted
for more than 5 percent of the total national change in risk score.
Another commenter stated that allowing minimal releases to move to Form
A would allow the TRI database to focus more on releases that represent
a potential risk to the public.

Response:

EPA disagrees with SBA that a firm conclusion can be drawn about the
impact the proposed rule will have on analyses of risk posed by TRI
chemicals.  The Small Business Administration (SBA) contends that a
5,000-pound ARA for TRI-listed non-PBT chemicals would have little
impact on the risk profiles for these chemicals.  In drawing this
conclusion SBA relied upon EPA's Risk Screening Environmental Indicators
(RSEI) tool.  While RSEI is a valuable tool, it is a screening tool that
makes assumptions about chemical toxicity and exposure pathways that may
not hold true at the local level where a more robust risk assessment can
be undertaken.  More information on the functionality and limitations of
RSEI can be found at: http://www.epa.gov/oppt/rsei.

Another commenter asserts that by allowing facilities reporting minimal
releases to utilize Form A the TRI database could focus more attention
on releases that represent a potential risk to the public.  EPA
disagrees with this comment.  First, small releases do not necessarily
represent small risks.  Second, at the community level, a small release
may represent a significant risk.  For example, EPA is not convinced
that communities located in a ZIP code where all Form R reporting could
convert to Form A reporting under the proposal would agree with the
commenter’s sentiment.

b. Amount of data lost is very small

Summary of Comments (by Abt):

Four commenters expressed support for expanding Form A eligibility for
non-PBT chemicals because the amount of data lost is very small.  The
U.S. Small Business Administration noted that a large number of ZIP
codes can convert entirely to Form A only because more than 550 ZIP
codes have only one or two reports.  The National Federation of
Independent Business (NFIB) noted that 99.9 percent of the information
would still be collected and that EPA’s analyses demonstrate that a
higher reporting threshold, as proposed, would meet the statutory
requirement that EPA may revise thresholds only to the extent that the
revised threshold obtains reporting on a substantial majority of total
releases of the chemical at all facilities subject to Section 313 of the
Emergency Planning and Community Right-to-Know Act (EPCRA).

Response:

While the detailed Form R information for the approximately 14 million
pounds of releases estimated by EPA to be eligible for Form A under the
proposal represents information on less than 1% of total TRI releases
nationwide, at the local level the impact is much more pronounced.  As
discussed in the preamble to the proposed rule, under the proposed
5,000-pound ARA, 26 TRI chemicals could convert to all Form A reporting
and 655 ZIP codes with at least one TRI facility (approximately 7% of
all ZIP codes with a TRI facility) could convert to all Form A
reporting.  While these 655 ZIP codes have only one or two Form Rs
currently, for these communities the replacement of detailed Form R
information with Form A range reporting may be significant.  Commenters
have expressed concern about the loss of such TRI information at the
local level.

Comments from States and local government, environmental and
community-based organizations, university faculty and other researchers,
investors, and concerned citizens have provided estimates of information
that may move to Form A, and in particular, the loss of Form R release
details at the local level.  Comments have included estimates of the
number of release pounds and/or Form Rs for all TRI-listed non-PBT
chemicals and specific non-PBT chemicals that may no longer be available
because of Form A eligibility under the proposed rule.  While commenters
recognize that the potential loss of the more detailed Form R release
information under the proposal represents a small percentage of TRI
releases nationally, it is at the local level that a 5,000-pound Form A
range of release and other waste management information would adversely
impact the ability to perform trend analyses, monitor the performance of
individual facilities, and more generally, meet the intended purpose of
the data collection to inform the public, government, and other data
users about releases of toxic chemicals to the environment.

ii. Burden reduction is helpful

Summary of Comments (by Abt):

Three commenters expressed support for expanding Form A eligibility for
non-PBT chemicals because the burden reduction associated with the
proposal is helpful.  The Consumer Specialty Products Association (CSPA)
stated that facilities that are well under the higher threshold will be
spared having to do the calculations.  American Public Power Association
(APPA) stated that even small burden reduction can be really helpful to
smaller entities.  APPA noted that 117,000 hours of reporting saved is
really significant to smaller utility entities.

Response:

EPA agrees with the commenters expressing support for expanded Form A
eligibility for non-PBT chemicals that Form A provides burden relief.
EPA acknowledges that facilities with releases and other waste
management amounts well below the threshold for Form A may be spared the
burden of detailed calculations to determine eligibility for Form A.
EPA further allows for the possibility that Form A may amount to
significant burden reduction for small facilities.

However, in addition to considering burden reduction, EPA has carefully
considered the concerns raised by commenters about the impact the
proposal could have on the utility of the data.  Comments from States
and local government, environmental and community-based organizations,
university faculty and other researchers, investors, and concerned
citizens have provided estimates of information that may move to Form A,
and in particular, the loss of Form R release details at the local
level.  Comments have included estimates of the number of release pounds
and/or Form Rs for all TRI listed non-PBT chemicals and specific non-PBT
chemicals that may no longer be available because of Form A eligibility
under the proposed rule.  While commenters recognize that the potential
loss of the more detailed Form R release information under the proposal
represents a small percentage of TRI releases nationally, it is at the
local level that a 5,000-pound Form A range of release and other waste
management information would adversely impact the ability to perform
trend analyses, monitor the performance of individual facilities, and
more generally, meet the intended purpose of the data collection to
inform the public, government, and other data users about releases of
toxic chemicals to the environment.

Accordingly, EPA has decided to finalize the 5,000-pound Form A ARA with
a 2,000-pound limit on releases of non-PBT chemicals.  EPA believes that
this final rule approach to expanded Form A eligibility for non-PBT
chemicals strikes a better balance than the proposed rule insofar as
providing meaningful burden relief while at the same time providing
valuable information to the public consistent with the goals and
statutory purposes of the TRI program.

B. Opposed to the proposed option

Summary of Comments (by Abt):

Twenty-four unique comments representing 1,625 commenters expressed
general opposition to the proposed option for non-PBT chemicals.  Many
commenters wrote that the proposal would cause increased releases from
facilities eligible for Form A.

The Ohio Environmental Protection Agency (EPA) wrote that the proposal
did not consider the toxicity of the non-PBT chemicals currently
reported under TRI.  Ohio EPA wrote that the health effects vary greatly
across TRI chemicals and the eligibility level for use of the Form A
should consider the toxicity associated with each chemical.  Several
commenters wrote that EPA seems to be ignoring its mandate to protect
the public.  One commenter wrote that the proposal ignores the
cumulative effect of small releases.  The Group Against Smog &
Pollution, Inc., wrote that the non-PBT proposal seems in opposition to
the scope and purpose of Title 40, Part 372, Toxic Chemical Release
Reporting: Community Right-To-Know.

Response:

In response to comments opposed to the proposed 5,000-pound annual
reportable amount (ARA) for non-PBT chemicals because of the loss of
detailed Form R waste management information and in particular, the loss
of detailed information on quantities released, EPA has decided to
modify the proposed 5,000-pound ARA by placing a 2,000-pound limit on
releases of non-PBT chemicals being considered for Form A.  In other
words, based on this modification to the proposal, in order for a
facility to use the Form A Certification Statement for a non-PBT
chemical, the facility cannot have more than 5,000 pounds of total waste
management (i.e., releases, recycling, energy recovery, and treatment)
of that chemical, and the contribution of releases toward the
5,000-pound total waste management amount can be no greater than 2,000
pounds.  By placing a 2,000-pound limit on the amount of releases that
may be applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total release pounds that would no longer be
reported on Form R under the proposed rule at full utilization of Form A
and at the same time, this rule preserves almost 80% of the burden
reduction offered by the non-PBT portion of the proposed rule.

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of additional release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden relief while at the same time providing valuable information to
the public and responding to commenters’ concerns about potential
increases in releases, the varying toxicities of TRI-listed non-PBT
chemicals, and the cumulative effect of releases.

Further, by limiting the release portion of the 5,000-pound ARA to 2,000
pounds, EPA is structuring the Form A eligibility criteria in a way that
promotes treatment and recycling over releases.  Such a structure is
consistent with national policy on pollution prevention.  Section
6602(b) of the Pollution Prevention Act of 1990 reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe 	manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

This rule caps the release portion of the 5,000-pound ARA for non-PBT
chemicals at 2,000 pounds.  By finalizing a higher quantity for
recycling, treatment, and energy recovery portions of the ARA at the
proposed 5,000-pound maximum, EPA has built into the Form A eligibility
criteria an incentive for facilities to move away from disposal and
other releases and toward treatment and recycling.  Further, by
including all waste management activities in the Form A eligibility
criteria EPA is encouraging facilities above the 5,000-pound ARA to
reduce their total waste management in order to qualify for Form A.

i. Raised threshold is inconsistent with EPCRA/ previous EPCRA rules

Summary of Comments (by Abt):

Five unique comments representing six commenters expressed general
opposition to the non-PBT proposal because raising the reporting
threshold is inconsistent with EPCRA or previous EPCRA rules.  One
commenter wrote that the proposal ignores the cumulative effect of small
releases.  The Group Against Smog & Pollution, Inc., wrote that the
non-PBT proposal seems in opposition to the scope and purpose of Title
40, Part 372, Toxic Chemical Release Reporting: Community Right-To-Know.

In a similar vein, the State Attorneys General of NY, CA, CT, IL, IA,
MD, MA, NH, NJ, NM, VT, and WI wrote that the proposed changes violate
EPCRA section 313(f)(2), and would allow violation of the TRI statutory
disclosure requirements found in EPCRA sections 313(a) and (g) and PPA
section 6607(a).  Section 313(f)(2) requires EPA to analyze the impact
on individual chemicals, not on the aggregate of all chemicals, and
ensure the revised threshold "shall obtain reporting on a substantial
majority of total releases of the chemical at all facilities subject to
the requirements of [section 313]."

The State Attorneys General also wrote that the EPA has not indicated
whether or not it even followed any specific definition of "substantial
majority," 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.  But this is contrary to
law, according to the commenters, since the plain language of the EPCRA
section 313(f)(2) requires an individualized analysis for each chemical.
 EPA’s assertion that the proposal meets the substantial majority
standard based on aggregate figures is contrary to the law.

EPA’s chemical-by-chemical 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.
In New Hampshire, the proposed rule could completely eliminate reporting
of at least 49 of the 81 chemicals currently reported.  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.
Indeed, Congress instructed that the TRI reporting requirements "should
be construed expansively to require the collection of the most
information permitted under the statutory language."  Taking 95 percent
as the minimum acceptable definition of "substantial majority," and
using EPA's own figures and methodology, 119 chemicals or classes would
fail the statutory test - i.e., would lose reporting for five percent or
more of releases - if the proposed rule were finalized.

Although using EPA's figures shows that the proposed rule would violate
EPCRA, in fact the matter is even worse because EPA's figures likely
underestimate the information that will no longer be required to be
reported under the proposed rule.  EPA does not explain, in either the
proposed rule or the economic analysis, how it calculated the percentage
of releases no longer required to be reported on Form R, and for that
reason alone EPA's conclusions are arbitrary and capricious and an abuse
of discretion.  The State Attorneys General also stated that EPA’s
analysis improperly limited the dataset by excluding Form Rs with ARAs
of 500 pounds or less when considering whether the proposed revised
threshold would obtain reporting on a substantial majority of total
releases of the chemical at all facilities subject to the requirements
of section 313.  According to the State Attorneys General, the only
lawful and rational interpretation of the statute is that the dataset
used to determine whether a particular chemical meets the substantial
majority test must include all releases for that chemical, not just
those that must be reported under the then-existing reporting
thresholds. [An extended critique of the method can be found in the
comment, docket ID 4553.]

OMB Watch wrote that, at the community level, the difference between 500
pounds and 5,000 pounds of toxic releases is enormous.  According to the
Code of Federal Regulations, the purpose of the toxic reporting under
the TRI program is to inform communities.  It states specifically that,
"The information collected under this part is intended to inform the
general public and the communities surrounding covered facilities about
releases of toxic chemicals, to assist research, to aid in the
development of regulations, guidelines, and standards, and for other
purposes."

Response:

EPA disagrees with commenters that the proposed rule expanding Form A
eligibility for non-PBT chemicals is inconsistent with the provisions
authorizing changes to TRI reporting thresholds.  However, because of
concerns raised by commenters over the loss of information on releases
of non-PBT chemicals, EPA has decided to modify the proposed 5,000-pound
ARA by placing a 2,000-pound limit on releases of non-PBT chemicals
being considered for Form A.

This final rule is consistent with the authority given to EPA by EPCRA
section 313(f)(2).  As discussed in the preamble to the proposed rule,
EPCRA allows EPA to adjust the reporting thresholds so long as the
adjusted thresholds "obtain reporting on a substantial majority of total
releases of the chemical at all facilities subject to the requirements
of this section."  Under this rule, Form A eligibility is being extended
to facilities reporting on non-PBT chemicals with Annual Reportable
Amounts (ARAs) not exceeding 5,000 pounds and release amounts
contributing no more than 2,000 pounds toward the 5,000-pound ARA.
Under this rule, each Form A continues to serve as a range report,
informing the public that total releases is in the range of zero to
2,000 pounds and that total waste management (which includes releases)
is in the range of zero to 5,000 pounds.

Furthermore, Form A provides important information.  TRI data users are
currently able to access Form A facility information via Envirofacts and
TRI Explorer (http://www.epa.gov/triexplorer) in the same manner that
Form R facility information is accessed.  Form A informs data users that
a facility is a potential source of releases and other waste management
activities.  Using EZ Query in Envirofacts
(http://www.epa.gov/envirofacts), data users are able to access
individual chemical Form As along with the TRI Facility Identification
Numbers (TRIFIDs) and the names of facilities submitting Form As.

With regard to the concern of the State Attorneys General that EPA’s
analysis improperly limited the dataset assessing the impact of the
proposed 5,000-pound Form A threshold by excluding Form Rs with ARAs of
500 pounds or less, EPA did, in fact, consider the potential
non-reporting of detailed Form R release information against total
releases reported under TRI, including those releases reported for Form
Rs with ARAs of 500 pounds or less. (See document TRI-2005-0073-0020
located at   HYPERLINK "http://www.regulations.gov"  www.regulations.gov
)  In addition, EPA emphasizes that under this rule, each Form A
continues to serve as a range report, informing the public that total
releases is in the range of zero to 2,000 pounds and therefore Form A
continues to obtain reporting on a substantial majority of total
releases of every TRI-listed chemical at all facilities as required be
EPCRA § 313(f)(2).  42 U.S.C. § 11023(f)(2).

ii. Unacceptable data loss

Summary of Comments (by Abt):

Nineteen unique commenters representing 12,907 commenters expressed
general opposition to the proposed option for non-PBT chemicals because
the resulting data loss is unacceptable.  Many commenters wrote that the
gaps in publicly available data would harm communities.  Other
commenters wrote that the data loss would harm investors and regulators.
 The Social Investment Research Analysts Network (SIRAN) wrote that the
proposal would deprive investors of potentially useful information about
companies’ risks and potential liabilities from releases or handling
of even small amounts of many TRI-listed chemicals.  SIRAN sees no
compelling need to weaken the rights of investors to gain a full picture
of these risks.

Other commenters discussed the substantial size of the data loss.
Robert Colby of the Association of Local Air Pollution Control Officials
and Vinson Hellwig of the State and Territorial Air Pollution Program
Administrators (two national associations of state and local air
pollution control officials), wrote that EPA has estimated that the
proposal would affect approximately one-third of those facilities
reporting to the TRI.  That represents a significant amount of data that
would no longer be available to the public.  The Philadelphia Department
of Public Health wrote that Form A requires no numerical information
from reporting facilities, only the chemical name.  If this proposal
moves forward, Philadelphia will lose all data about a wide range of
significant environmental releases.  There are 57 facilities in
Philadelphia currently reporting under the TRI.  In 2003, the 14
facilities that would have no longer been required to report on Form R
under the proposal released 7,857 pounds of toxins. While this quantity
may not mean much at the national level, it is very significant at the
community level.  Wilman Chan of the California State Assembly wrote
that it is clear that California will lose an unacceptable amount of
information.

Some commenters discussed the inadequacy of Form A.  The National
Environmental Trust stated that the proposal calls the certification
statement "Form A" even though it does not meet the statutory
requirements for information required on a TRI reporting form.  The
certification statement requires no numerical information from reporting
facilities, only the chemical name.  Strictly speaking, it cannot
actually be called a "form" for TRI reporting purposes.

Several State Attorneys General wrote that EPA contends that a data user
"may" be able to predict what waste management activity is likely to be
used at a facility for non-PBT chemicals.  They stated that EPA provides
no support for this proposition, and it seems unlikely to be true as a
general matter since non-PBT chemicals are so numerous and waste
quantities of a particular chemical may be dealt with in multiple ways.

Response:

In response to comments opposed to the proposed 5,000-pound annual
reportable amount (ARA) for non-PBT chemicals because of the loss of
detailed Form R waste management information and in particular, the loss
of detailed release information used by States, communities, investors,
and other TRI data users, EPA has decided to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By placing a 2,000-pound limit
on the amount of releases that may be applied to the 5,000-pound ARA for
Form A eligibility, this rule preserves almost 60% of the total release
pounds that would no longer be reported on Form R under the proposed
rule at full utilization of Form A and at the same time, this rule
preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of additional release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden reduction while at the same time ensuring that the intended
purposes of the TRI data are satisfied.

Furthermore, EPA believes that Form A provides valuable information to
data users.  TRI data users are currently able to access Form A facility
information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities.
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.

Additionally, as discussed in the preamble to the proposed rule, for
today's action the Agency has considered existing Form A utilization.
Specifically, the Agency observed that only slightly over half of the
forms (54%) potentially eligible for Form A use take advantage of that
option.  The Agency believes there are a number of potential reasons for
this utilization rate, including the desire to showcase pollution
prevention efforts on Form R and the desire to demonstrate good
environmental stewardship.  Regardless of the factors that prompt
facilities to use Form R when they may be eligible for Form A, the
Agency does not believe the rate of Form A utilization is likely to be
significantly higher at a 5,000-pound ARA with a 2,000-pound release
limit than it has been to date at the 500-pound ARA threshold.

a. Impacts community understanding of pollution/right-to-know

Summary of Comments (by Abt):

Eighteen unique comments representing 5,994 commenters expressed general
opposition to the proposed option for non-PBT chemicals because the
resulting data loss would leave communities with an insufficient
understanding of local pollution.  Many commenters said the public has a
basic right to know what is released into the environment.

James Jeffords and five other US Senators wrote that they are concerned
about EPA's proposal to allow thousands of facilities to withhold
details about pollution volumes, waste management and treatment if they
release less than 5,000 pounds of toxic chemicals annually. Although
such volumes may constitute only a small percentage of total national
releases, neighbors and communities surrounding a facility that releases
thousands of pounds of toxic chemicals consider the data invaluable.

Many commenters wrote about the local impact of the proposal.  The
Natural Resources Defense Council wrote that the proposal would cause
the loss of detailed data on over 12,000 chemical releases from more
than 6,400 facilities.  NRDC stated that EPA’s national estimate of
data loss overlooks significant impacts on data availability at the
local level.  While a 5,000-pound ARA of a particular chemical may
represent only a small fraction of its nationwide releases, 5,000 pounds
is a substantial amount for a community exposed to chemical releases
from a local facility.  Having the detailed information on quantities of
chemical releases and production-related waste contained in Form R is
necessary for these communities to track facilities' progress in
reducing chemical emissions and to address local concerns regarding
chemical exposures.

The Denver Department of Environmental Health wrote that the proposal
would decrease the amount of relevant information that is available to
the public, and estimated that perhaps one-quarter of the chemicals
currently reported under Form R in Denver will be eligible for Form A.
The League of Women Voters of California wrote that if the reporting
thresholds are increased tenfold, about 100 communities in California
would lose more than half of the reports currently collected.  While the
current, lower threshold may seem trivial on a national scale, it may be
a serious health and safety concern for the community surrounding a
facility.  Critical information for local planning would be lost with
this proposal.

Several State Attorneys General wrote that, since impacts may extend
beyond the ZIP code in which the reporting facility is located, EPA
should do a county-by-county analysis, as apparently was done in the
1994 Form A rulemaking, and should also do analyses based on the
population within a fixed radius (1 mile, 3 miles, 10 miles) of the
facilities for which reporting would be lost under the proposed rule.
These analyses should also include evaluation of the possibility of
disproportionate impacts on minority and low-income individuals,
pursuant to EPA's obligations under the Executive Order 12898 on
environmental justice.

Response:

In response to commenters’ concerns over the loss of detailed Form R
waste management information and in particular, the loss of local level
information on quantities released, EPA has decided to modify the
proposed 5,000-pound ARA by placing a 2,000-pound limit on releases of
non-PBT chemicals being considered for Form A.  In other words, based on
this modification to the proposal, in order for a facility to use the
Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.

Under this final rule, EPA estimates that approximately 9,500 Form Rs
will be newly eligible for Form A.  These 9,500 Form Rs represent about
80% of the approximately 12,000 Form Rs EPA estimated to be newly
eligible for Form A under the proposal.  The result of this final rule,
however, is that only about 5.7 million pounds of additional release
information may no longer be reported on Form R.  Compared to the
approximately 14 million pounds of release information estimated to be
at issue under the proposed rule, the final rule preserves almost 60% of
the detailed release information that could have been lost from Form R
reporting under the proposal.  EPA believes that this final rule
approach to expanded Form A eligibility for non-PBT chemicals strikes a
better balance than the proposed rule insofar as providing meaningful
burden reduction while at the same time addressing concerns about the
provision of detailed information to local communities and ensuring that
the intended purposes of the TRI data are satisfied.

The comment from the State Attorney’s General states that EPA should
do analysis beyond the ZIP Code analysis already completed such as
county-level analyses and analysis for populations within a specific
fixed radius of facilities.  As discussed in the preamble to the
proposed rule, EPA decided to use ZIP codes instead of counties to
characterize the rule’s impact at the local level because EPA believed
ZIP codes would provide a better measure of local impacts.

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities.

(1) Potential loss of all data for a facility or all facilities in a
local community

Summary of Comments (by Abt):

Forty-two unique comments representing 46 commenters expressed general
opposition to the proposed option for non-PBT chemicals.

Many environmental organizations and state agencies wrote in with
statistics detailing the loss of data for communities and facilities
that would result from the proposal.

Nationwide, 10% of communities would lose 100% of their Form R
reporting.  For individual states, the following sample statistics were
submitted:

0-10% of communities statewide losing all reporting: MN, RI, WI, PA, SD.

11-20% of communities statewide losing all reporting: NH, ME, CA, MI,
FL, NC, NY.

21-40% of communities statewide losing all reporting: WA, VT.

41-80% of communities statewide losing all reporting: MA, CO.

Nationwide, 18% of communities would lose 50% of their Form R reporting.
 For individual states:

11-20% of communities statewide losing 50% reporting: MN, SD.

21-40% of communities statewide losing 50% reporting: CA, NH, ME, FL.

Nationwide, 27% of communities would lose 25% or ‘some’ of their
Form R reporting.  For individual states:

11-20% of communities statewide losing 25% or ‘some’ reporting: MN,
WI.

41-80% of communities statewide losing 25% or ‘some’ reporting: ME,
RI.

80-100% of communities statewide losing 25% or ‘some’ reporting: WA,
CA, MI, VT.

Commenters also wrote in to detail the number of facilities that would
be eligible to stop 100% of their Form R reporting.  Nationwide, 3,849
facilities would be eligible.  For individual states:

states with 0-25 facilities to stop 100% Form R reporting: VT, SD, NM,
DE, RI.

states with 25-50 facilities to stop 100% Form R reporting: WA
(according to the North American Hazardous Materials Management
Association, DOCKET id 2030), NH, CT, ME, CO.

states with 51-100 facilities to stop 100% Form R reporting: AZ, IA, OR,
WA(docket ID#2057), MN.

states with 101-200 facilities to stop 100% Form R reporting: WI, NH,
MA, NY, FL, NC, MI.

states with 201-300 facilities to stop 100% Form R reporting: TX, OH,
CA.

Commenters also wrote in to detail the percentage of communities that
would lose Form R reporting on 50% of the releases from their local
facilities.  Nationwide, 13% of communities would lose Form R reporting
on 50% of the releases in their communities.  For individual states:

states with 0-10% of their communities losing 50% Form R reporting (by
releases): ME, MN.

states with 11-20% of their communities losing 50% Form R reporting (by
releases): SD, NH, CA.

Commenters also wrote in to detail the percentage of communities that
would lose Form R reporting on 25% of the releases from their local
facilities.  Nationwide, 16% of communities would lose Form R reporting
on 25% of the releases in their communities.  For individual states:

states with 11-20% of their communities losing 25% Form R reporting (by
releases): SD, MN, ME, NH.

states with 21-40% of their communities losing 25% Form R reporting (by
releases): CA.

Additionally, one commenter wrote that specific communities in Los
Angeles will be most affected.  Communities in more than 90 ZIP codes in
LA County, from Long Beach to the West Side to San Bernardino will lose
some or all of the pollution information about chemical releases in
their neighborhoods.  The Environment Maine Research and Policy Center
wrote that, at just one pulp and paper mill in Maine, the changes could
eliminate reporting on 5-10 chemicals, according to an industry
spokesperson.

The North American Hazardous Materials Management Association wrote that
in Washington State approximately one third (33%) of the non-PBT reports
would qualify for Form A.  About 50 out of 350 current TRI facilities
would move completely to Form A reports for all chemicals.  Eight of
these facilities were among the highest risk facilities in the 2002
reporting year.  In Minnesota, the proposed change would eliminate
upwards of 300, or nearly 25% of the 1,250 Form Rs submitted annually.
It would eliminate currently available detailed data for 68 of the 418
industrial facilities that currently report to the Toxics Release
Inventory.

The New Jersey Department of Environmental Protection wrote that an
analysis of its 2004 Release and Pollution Prevention Report (RPPR) data
shows that 453 facilities submitted 1,831 chemical reports for
substances that are not considered to be PBTs. These facilities are
located in 173 municipalities.  Under the burden reduction proposal,
these reports for 2004 would conceal more than 548,000 pounds of
production-related waste (or nonproduct output (NPO)).  Releases
accounted for more than 155,000 pounds of this NPO. These same
facilities reported 54.6 million pounds of toxic chemicals shipped as
(or in) product.

The Washington Department of Ecology wrote that, under this proposal,
Washington  State will lose valuable data concerning up to 1.5 million
pounds of releases annually in communities throughout the state, plus
all release data for eight of the top 40 facilities with the highest
relative risk ranking, based on 2002 data.  The Sierra Club wrote that,
in Broward County, chemical facilities like Chemical Packaging
Corporation, a producer of chemical solvents, would be exempt from
reporting.  The facility uses Trichloroethane - a federal hazardous air
pollutant, exposure to which can lead to dizziness, vomiting and
respiratory arrest.

Response:

As discussed in the preamble to the proposed rule, under the proposed
5,000-pound ARA, 26 TRI chemicals could have all reporting convert to
Form A and 655 ZIP codes with at least one TRI facility (approximately
7% of all ZIP codes with a TRI facility) could have all reporting
convert to Form A.  While these 655 ZIP codes have only one or two Form
Rs, for these communities the loss of the Form R information may be
significant.  Commenters have expressed concern about the loss of TRI
information at the local level.  Comments from States and local
government, environmental and community-based organizations, university
faculty and other researchers, investors, and concerned citizens have
provided estimates of the loss of detailed Form R information, and in
particular, the loss of detailed Form R release information at the local
level.  Comments have included estimates of the number of release pounds
and/or Form Rs for all TRI listed non-PBT chemicals and specific non-PBT
chemicals that may no longer be available because of Form A eligibility
under the proposed rule.  While commenters recognize that the potential
loss of detailed Form R release information under the proposal
represents a small percentage of TRI releases nationally, it is at the
local level that a 5,000-pound Form A range of release and other waste
management information would adversely impact the ability to perform
trend analyses, monitor the performance of individual facilities, and
more generally, meet the intended purpose of the data collection to
inform the public, government, and other data users about releases of
toxic chemicals to the environment.  In response to concerns over the
loss of detailed TRI waste management information, and in particular,
Form R information about releases at the local level, EPA has decided to
modify the proposed 5,000-pound ARA by placing a 2,000-pound limit on
releases of non-PBT chemicals being considered for Form A.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.  EPA believes that this final
rule approach to expanded Form A eligibility for non-PBT chemicals
strikes a better balance than the proposed rule insofar as providing
meaningful burden reduction while at the same time ensuring that the
intended purposes of the TRI data are satisfied.

b. Pounds of total releases/production-related wastes

Summary of Comments (by Abt):

Twenty commenters expressed general opposition to the proposed option
for non-PBT chemicals stating that the loss of data for particular
chemicals and total releases is unacceptable.

Many environmental organizations and State agencies wrote in with
statistics detailing the loss of data for particular chemicals and
pounds of total releases that would result from the proposal.  For
example:

Chemicals that could lose 33-80% of Form R reporting statewide: benzene
(MN), chromium compounds (NH), diisocyanates (ME, MN), hydrogen fluoride
(ME), mercury (NH), n-hexane (SD, ME), nickel (CA), sodium nitrite (SD),
toluene diisocyanate (mixed isomers) (ME), Zinc compounds (SD).

Chemicals that could lose 90-100% of Form R reporting statewide:
1,3-butadiene (MN), arsenic (NC), arsenic compounds (ME, NJ), benzene
(SD), di-(2-ethylhexyl) phthalate (CA, MN), formaldehyde (DE), manganese
(NH), MTBE (DE), naphthalene (SD), n-hexane (NH), nickel compounds (ME),
selenium (TX), tetrachloroethylene (DE), toluene diisocyanate (mixed
isomers) (CA, NM), Zinc (fume or dust) (SD).

CA also reported the expected loss of 20,150 pounds of ethylbenzene.
Commenters also reported the expected losses nationwide: 60% of the Form
R reporting for arsenic compounds, 50% for benzene, 66% for
di-(2-ethylhexyl) phthalate, 70% for diisocyanates, and 100% for
toluene-2,6-diisocyanate.

The New Jersey Department of Environmental Protection wrote that based
on examining data reported for the last 10 years (1995 - 2004), if the
proposed 5,000-pound threshold were in effect, detailed release and
waste management data (nonproduct output or “NPO”) of more than one
million pounds of cancer-causing compounds would not have been revealed.
 Lead was not included in this analysis since it is also a PBT.  Details
such as the following would not have been available to the public:
21,000 pounds of production-related waste (NPO) for the carcinogen
arsenic, among others, would not have been reported (this would mean
that all arsenic data would be lost); 122,465 pounds of styrene
production-related waste would not be reported; and nearly 175,000
pounds of chromium (in compounds) production-related waste would not be
reported. [For details, see text and tables on p. 3-7, Document ID
2235.2]

The South Carolina Department of Health & Environmental Control wrote
that arbitrarily increasing the Form R reporting threshold for non-PBT
chemicals as stated in their proposal will remove 643 of the 1,495 Form
R electronic submissions in South Carolina based on 2003 figures.  EPA's
Risk Screening Environmental Indicators tool shows that losing 43%
percent of the state's non-PBT chemical reports will also remove any
record of the on-site releases to air and water that comprise 32% of the
State's total relative risk score.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, and WI wrote that among the chemicals for which the proposed rule
could eliminate 100 percent of release disclosures is
toluene-2,6-diisocyanate ("2,6-TDI").  2,6-TDI is a highly volatile
substance that is reasonably anticipated to be a carcinogen; can
irritate and burn the skin and eyes on contact; and can irritate the
nose, throat, and lungs if inhaled, potentially causing pulmonary edema.
 Two-thirds of the total nationwide reported 2003 on-site releases of
that chemical to the air (i.e., 967 out of 1,427 pounds), came from the
Cytec Olean facility in Olean, New York, which reported a maximum amount
of over 10,000 pounds of 2,6-TDI on site.  The Cytec Olean facility is
within 1.3 miles of four elementary schools.  If EPA finalizes the
proposed rule, this facility might qualify for Form A with regard to its
2,6-TDI emissions, and if so, 15,000 residents of Olean might no longer
have any way of knowing the amount of that dangerous chemical released
from the plant near these schools, or the maximum amount of the chemical
on the plant site.  If it qualifies for Form A, Cytec Olean might be
able to increase its releases of this chemical fivefold without
disclosure to Olean's residents or first responders, or any governmental
authority.  The State Attorneys General wrote that in New York State,
the rule could result in the loss of information concerning
approximately 380,000 pounds of chemical releases.

The Oklahoma Department of Environmental Quality wrote that with 2003
data, of 1,178 reports filed in Oklahoma, 203 were Form A submissions.
However, if the rule change went into effect, the number of Form A
submissions would go to 772.  The percentage of total submissions on
Form A would rise from 17% to 65% total submissions on Form A. Oklahoma
would have no data on the releases, transfers, reuse or treatment for
the majority of TRI submissions for a given year.  Again, based on 2003
as the example, 371,498 pounds of releases would go unreported.

The Minnesota Pollution Control Agency wrote that the rule would
eliminate upwards of 400, or over 30%, of the 1,250 Form Rs submitted
annually in Minnesota.

Cathy Cloutier of Delaware House of Representatives wrote in support of
the Delaware Department of Natural Resources and Environmental
Control’s comments regarding the loss of all or most of the numerical
data regarding the release of dozens of chemicals that would be lost
under this proposal, including formaldehyde, tetrachloroethylene (TCE)
and MTBE.  Both TCE and MTBE have contaminated ground water at several
locations - from Elsemere in the north to Rehoboth Beach in the south -
resulting in severe drinking water supply damages, costing millions of
dollars and threatening homes with vapor intrusion from toxic
underground contamination.

The Philadelphia Department of Public Health wrote that the following
type of local releases to the air, for which data would not have been
reported under EPA's current proposal: 3,343 pounds of the recognized
carcinogen trichloroethylene; 560 pounds of the recognized developmental
toxicant toluene; and 512 pounds of the suspected neurotoxicant xylene.

Washington Department of Ecology wrote that the state will lose valuable
data concerning up to 1.5 million pounds of toxic releases annually in
and near communities throughout the state.  Additionally, Washington
could lose all release data for eight of the top 40 facilities with the
highest relative risk ranking, based on 2002 data.

Law Environmental, Inc., wrote that the proposal would result in 12,201
fewer Form Rs, and lost reporting for 14 million pounds of releases and
25 million pounds of total production-related waste.

Response:

Comments from States and local government, environmental and
community-based organizations, university faculty and other researchers,
investors, and concerned citizens have provided estimates of the loss of
detailed Form R information, and in particular, the loss of detailed
Form R release information at the local level.  Comments have included
estimates of the number of release pounds and/or Form Rs for all TRI
listed non-PBT chemicals and specific non-PBT chemicals that may no
longer be available in detail because of Form A eligibility under the
proposed rule.  While commenters recognize that the potential loss of
Form R release information under the proposal represents a small
percentage of TRI releases nationally, it is at the local level that a
5,000-pound Form A range of release and other waste management
information would adversely impact the ability to perform trend
analyses, monitor the performance of individual facilities, and more
generally, meet the intended purpose of the data collection to inform
the public, government, and other data users about releases of toxic
chemicals to the environment.  In response to these concerns over the
loss of TRI waste management information, and in particular, the loss of
detailed Form R information about releases at the local level, EPA has
decided to modify the proposed 5,000-pound ARA by placing a 2,000-pound
limit on releases of non-PBT chemicals being considered for Form A.  By
placing a 2,000-pound limit on the amount of releases that may be
applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total release pounds that would no longer be
reported on Form R under the proposed rule at full utilization of Form A
and at the same time, this rule preserves almost 80% of the burden
reduction offered by the non-PBT portion of the proposed rule.  EPA
believes that this final rule approach to expanded Form A eligibility
for non-PBT chemicals strikes a better balance than the proposed rule
insofar as providing meaningful burden reduction while at the same time
ensuring that the intended purposes of the TRI data are satisfied.

c. Affects use of data in other regulatory programs/policy-setting

Summary of Comments (by Abt):

Nine unique submissions representing 13 commenters expressed general
opposition to the proposed option for non-PBT chemicals because the loss
of detailed data could affect other regulatory programs or
policy-setting efforts.

Several commenters wrote about EPA’s Risk Screening for Environmental
Indicators (RSEI) program, and the impact that the proposal would have
on it.  The National Environmental Trust wrote that RSEI is built in
large part on the premise that a small amount of releases of a more
toxic or hazardous chemical can be more dangerous than a larger release
of a less toxic substance.  This allows for more efficient prioritizing
of reduction programs or projects with the aim of reducing overall
hazard or risk.  The RSEI program relies exclusively on TRI data and
would be considerably less effective with the proposed Form A changes
that would remove reporting for some small facilities.  Don't Waste
Arizona, Inc., wrote that EPA would invalidate RSEI with these data
changes, and waste all the money that has been spent on developing RSEI.

The National Environmental Trust also wrote that EPA should be concerned
about small facilities because some of their releases consist of
Hazardous Air Pollutants (HAPs) regulated under the Clean Air Act.  The
national, regional, and local modeling done to predict ambient
concentrations of these chemicals uses TRI data and is likely to be
affected by sources dropping out -- even sources of 5,000 pounds per
year or less could have a significant impact on the modeling.  EPA's
documentation for this proposal does not indicate that the Agency has
considered the impact of collecting less data on releases of HAPs on the
Agency's ability to track and potentially regulate those chemicals.
Nationwide, 28% of forms for HAPs would contain no data under the
proposed Form A changes.  In Maine, the figure is also 28%.  It is
difficult to believe that the state or federal air program offices would
want to sacrifice the collection of these data in TRI--particularly
since it is the only chemical- and site-specific database the Agency has
for these substances.

The North American Hazardous Materials Management Association wrote that
these losses of detailed information would significantly undermine the
quality of state and local data that is used in tracking, targeting, and
providing technical pollution prevention assistance which most often
results in cost savings for industry from reduced waste and expenses
associated with managing hazardous materials.

The New York State Department of Environmental Conservation wrote that
the Division of Air Resources and agencies in other states are able to
assign allowable stack emission rates based upon accepted reference
concentrations (RfCs) developed by EPA.  Allowable stack emissions can
be derived using generic assumptions for stack height and stack flows,
thus making it possible to compare toxic compounds based upon their
emission rates.  The comment points to examples that show how raising
the annual reportable limit from 500 pounds to 5000 pounds, regardless
of the toxicity of the chemical, is bad public policy and impedes the
protection of public health.  Three compounds [hydrogen cyanide, acrylic
acid, hexachlorocylopentadiene] could have air emissions that result in
impacts greater than their respective RfCs at the facility fenceline but
with the submittal of Form A, the end-user will have no information on
releases of these compounds.  [For details/table, see p. 3, Document ID
2061.1]

The New York State Department of Environmental Conservation also wrote
that the proposal fails to address that the additional 12,000 small
facilities tend to be located in dense urban areas where EPA and state
agencies have been implementing Environmental Justice (EJ) programs.
The majority of small facilities are classified as area sources under
the EPA's 1990 Clean Air Act National Emission Standard for Hazardous
Air Pollutants (NESHAP) program and have no emission reporting
requirements.  Whereas some states keep track of these small facilities,
the public uses TRI as a source of data for these small facilities.  The
loss of data for these size facilities will only make state and federal
EJ programs difficult to implement.

The South Carolina Department of Health & Environmental Control wrote
that the following consequences of the proposal can be anticipated based
on analysis of 2003 data:  (1) three of the top 10 chemical releases
ranked for relative risk will be erased; (2)  investigating numerous
releases of concern will be taken out of the hands of state government;
(3) tracking the impact of regulatory programs through TRI such as
Maximum Achievable Control Technology and tightened parameters for
Priority Pollutants will be lost; and (4) the opportunity to compare
heavy metal releases with permit limits will be lost.

Response:

EPA agrees with commenters that the proposed expansion of Form A
eligibility for non-PBT chemicals can impact risk rankings such as
county-level risk rankings generated by the Agency's Risk Screening
Environmental Indicators (RSEI) tool.  This is because RSEI does not
recognize Form A in determining the comparative risk of a chemical
release quantity because Form A does not provide specific quantitative
information.  EPA also notes, however, that while RSEI is a valuable
tool, it is a screening tool that makes assumptions about chemical
toxicity and exposure pathways that may not hold true at the local level
where a more robust risk assessment can be undertaken.  More information
on the functionality and limitations of RSEI can be found at:
http://www.epa.gov/oppt/rsei.

With regard to the impact on information about Hazardous Air Pollutants
(HAPs) recognized under the Clean Air Act, the Agency factored into its
decision-making that a significant percentage of the approximately
12,000 Form Rs estimated to be newly eligible for Form A under the
proposal would be comprised of HAP chemical reports.  In particular, EPA
estimates that 32 specific HAP chemicals identified by the Agency as
“priority urban air toxics” could account for as many as 2,600 of
the 12,000 Form As at issue under the proposal.  In other words, these
32 high-priority chemicals (approximately 5% of all the TRI listed
non-PBT chemicals) could account for about a quarter of all newly
eligible Form As.

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities.

Further, comments from States and local governments, environmental and
community-based organizations, university faculty and other researchers,
investors, and concerned citizens have provided estimates of the loss of
detailed Form R information, and in particular, the loss of detailed
Form R release information at the local level.  Comments have included
estimates of the number of release pounds and/or Form Rs for all TRI
listed non-PBT chemicals and specific non-PBT chemicals that may no
longer be available in detail because of Form A eligibility under the
proposed rule.  While commenters recognize that the potential loss of
detailed Form R release information under the proposal represents a
small percentage of TRI releases nationally, it is at the local level
that a 5,000-pound Form A range of release and other waste management
information would adversely impact the ability to perform trend
analyses, monitor the performance of individual facilities, and more
generally, meet the intended purpose of the data collection to inform
the public, government, and other data users about releases of toxic
chemicals to the environment.

In response to all of the above-noted concerns about the loss of
detailed TRI-waste-management information, and in particular, the
impacts from the loss of detailed Form R information on releases at the
local level, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals being
considered for Form A.  By placing a 2,000-pound limit on the amount of
releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden reduction while
at the same time ensuring that the intended purposes of the TRI data are
satisfied.

d. Impact on public health

Summary of Comments (by Abt):

Sixteen commenters expressed general opposition to the proposed option
for non-PBT chemicals, because of the impact on public health.  Many
commenters felt that the proposal would result in increased releases,
with associated adverse health effects.  Several commenters mentioned
vulnerable subpopulations.  The League of Women Voters wrote that it
would especially impact children and the elderly.

Several commenters also mentioned that there is considerable uncertainty
associated with adverse health effects from toxics, and recent studies
have suggested that adverse effects can happen at lower levels of
exposure than previously expected.  The Group Against Smog & Pollution,
Inc. provided as an example, a study that was recently done in Miami
Oklahoma, with funding of $20,000 given by Harvard University to Dr.
David Bellinger, a researcher with Children's Hospital in Boston to
conduct a study of metals through a hair sampling analysis with a mass
spectrometer.  The results of this 2004 study showed that there was an
inverse relationship between exposure to arsenic and manganese and
verbal learning ability; but both metals had to be present to see this
result. The study was conducted with participants living either in or
near the national Tar Creek Superfund site. This was only one small
study but it highlights what is not known about the toxic components of
the ambient air and their health effects.

Several State Attorneys General wrote that more than 130 facilities in
New York would be able to stop all quantitative reporting on Form R, and
over 165 facilities would be able to stop quantitative reporting on Form
R for at least one chemical.  Because each of the over 165 facilities
potentially covered by the new rule would be able to avoid, on average,
reporting on 3.88 chemicals released to the environment, the unreported
releases could create almost 14 million potential individual exposures
to unreported chemical releases in New York alone (3.5 million citizens
x 3.88 chemicals = 13.74 million potential chemical exposures).  The
proposed rule would hit areas of high population density in New York
hard.  Quantitative reporting regarding 92 separate releases, totaling
21,774 pounds of chemicals, would no longer be required in extremely
high-density ZIP code areas (population density greater than 10,000
persons per square mile).  Similarly, quantitative reporting regarding
137 separate releases, totaling 31,571 pounds of chemicals, would no
longer be required in high-density ZIP code areas (population density
greater than 5,000 persons per square mile).  Furthermore, as the data
in Table 2 below demonstrate, these densely populated neighborhoods,
affected by tons of chemicals that could escape reporting, have a
disproportionately high proportion of minority and low-income residents.
[Table 2 provided in Document ID 4553, p.19.]

An area in the town of Tonawanda, New York, offers one particularly
striking example

of the possible aggregate effects of the rule.  TRI chemicals can have a
variety of harmful effects: they can cause neurological damage,
respiratory problems, blood disorders, and problems in fetal
development.  In Tonawanda's ZIP Code 14150 -- home of 45,000 residents
-- environmental releases of 8,100 pounds of neurotoxic chemicals; 3,100
pounds of chemicals that cause respiratory problems; 650 pounds of
hematotoxic chemicals; and 2,300 pounds of chemicals that cause
developmental problems could go unreported under the proposed rule.
Even if the proposed regulations would still require reporting of some
releases in a ZIP code, there could still be an unacceptable loss of
information about chemicals released to the local environment.

Response:

Many commenters expressed concern over the increase in releases they
believe will result from the proposed rule.  Commenters expressed
concern about increased exposures to unreported releases and the
possibility of adverse health effects, particularly in densely populated
neighborhoods with a high proportion of minority and low-income
residents.

In response to concerns that the proposed rule's 5,000-pound ARA for
non-PBT chemicals could result in less Form R information on releases
with associated adverse health effects, EPA has decided to modify the
proposed 5,000-pound ARA by placing a 2,000-pound limit on releases of
non-PBT chemicals being considered for Form A.  In other words, based on
this modification to the proposal, in order for a facility to use the
Form A Certification Statement for a non-PBT chemical, the facility
cannot have more than 5,000 pounds of total waste management (i.e.,
releases, recycling, energy recovery, and treatment) of that chemical,
and the contribution of releases toward the 5,000-pound total waste
management amount must be no greater than 2,000 pounds.  By placing a
2,000-pound limit on the amount of releases that may be applied to the
5,000-pound ARA for Form A eligibility, this rule preserves almost 60%
of the total release pounds that would no longer be reported on Form R
under the proposed rule at full utilization of Form A and at the same
time, this rule preserves almost 80% of the burden reduction offered by
the non-PBT portion of the proposed rule.  EPA believes that this final
rule approach to expanded Form A eligibility for non-PBT chemicals
strikes a better balance than the proposed rule insofar as providing
meaningful burden reduction while at the same time ensuring that the
intended purposes of the TRI data are satisfied.

A number of commenters raised concerns about the proposed rule’s
potential Environmental Justice (EJ) impacts.  Specifically, commenters
are concerned about the potential health effects and other impacts from
releases near minority and low-income populations.  EPA has given
careful consideration to these comments.  In the preamble to the
proposed rule, the Agency concluded (referring to both the PBT and
non-PBT portions), that “EPA has no indication that either option will
disproportionately impact minority or low-income communities.”  After
publication of the proposed rule, and in response to a request for
information from three members of the U.S. House of Representatives, the
Agency estimated that minorities comprise 31.8% of the U.S. population
and 41.8% of the population residing within one mile of facilities that
filed at least one Form R for reporting year 2003.  Minorities make up
an estimated 43.5% of the population residing within one mile of
facilities that would qualify for Form A in reporting year 2003 under
the proposed rule.  EPA also estimated that those individuals living
below the Census Bureau poverty level account for 12.9% of the U.S.
population and 16.5% of the population living within one mile of
facilities that filed at least one Form R for reporting year 2003.  The
figure for facilities that would qualify for Form A under the proposed
rule is 17.0%.  Based on the information provided to Congress, EPA said
that “the results show little variance between the percent of
communities with facilities filing Form Rs and the percent of
communities where facilities would be able to file Form A under the
proposed rule.”  As noted in more detail below, EPA does not have any
evidence that this rule will have a direct effect on human health or
environmental conditions.  Based on these results, EPA believes that the
rule will not disproportionately affect the environment or public health
in minority or low-income communities.

EPA recognizes that TRI provides important information that may
indirectly lead to improved health and environmental conditions at the
community level.  Although today’s action was not specifically crafted
to address minority and disadvantaged communities, the reduced number of
facilities eligible for Form A under today’s rule, as compared to the
proposed rule, means that there will be more detailed information
available to communities generally, including minority and disadvantaged
communities.

e. Data needed to support pollution reduction efforts

Summary of Comments (by Abt):

Seven unique submissions representing 11 commenters expressed general
opposition to the proposed option for non-PBT chemicals, because the
data that would be lost under the proposal is needed to support
pollution reduction efforts.

The National Environmental Trust wrote that, while the proposal mainly
discusses burden reduction for the reporting facility, EPA appears to
believe that 5,000 pounds of production-related waste is a small amount,
and therefore the Form A exemption will apply only to smaller
facilities.  However, there are four reasons that the proposed Form A
eligibility expansion will hinder efforts to promote pollution
prevention and could lead to non-reporting of significant releases: 1)
we know that these small facilities tend to have a larger percentage of
their production-related waste as releases to the environment than
larger facilities; 2) EPA’s Risk Screening for Environmental
Indicators (RSEI) program would be considerably less effective with the
proposed Form A changes that would remove reporting for some small
facilities; 3) TRI is the only chemical- and site-specific database the
Agency has for Hazardous Air Pollutants (HAPs) regulated under the Clean
Air Act; and 4) the proposal ignores non-production-related waste.
One-time or periodic activities such as dismantling refractory furnaces
and other maintenance activities can lead to significant releases to the
environment, even at small facilities, as can accidental releases.
However, these activities are not considered in calculating
production-related waste.  Depending on the circumstance, an accidental
release might not even be included in the threshold for TRI reporting.
Imagine the scenario in which the Bhopal Union Carbide facility were
located in the U.S., but did not have to report its well-publicized and
deadly accidental 40-ton release to TRI because the rest of its
activities were small enough to meet the 5,000-pound Form A threshold.
The prospect might sound far-fetched, but the reality is that the
proposed change to the Form A threshold means that 20% of total
non-production-related releases would no longer be reported.  According
to the 2003 TRI data, 124 facilities would not have to report
non-production releases of 1,000 pounds or more; for 10 of those
facilities, the amount is more than 100,000 pounds.

The Minnesota Technical Assistance Program wrote that the proposal would
affect the program’s ability to identify pollution prevention
opportunities and track pollution prevention successes, as well as
minimize the ability to link pollution prevention opportunities for
facilities that no longer report.  The Minnesota Pollution Control
Agency wrote that this proposal would significantly weaken the quality
of our data for tracking, targeting, and providing technical pollution
prevention assistance. This assistance results in cost savings for
industry from reduced waste and expenses associated with managing
hazardous materials.

The North American Hazardous Materials Management Association
(“NAHMMA”) wrote that they are particularly concerned about the
damaging effects of this proposal on pollution prevention programs,
which are essential to make communities safer.  The proposed increase in
threshold would directly undercut and perhaps ruin state pollution
prevention programs.  It would make it harder to monitor and provide P2
assistance for currently covered chemicals that move from Form R
reporting to Form A certification.  State pollution prevention programs
would be more difficult to carry out when state and local governments
lose the ability to monitor entire facilities.  For example, the
facilities that move entirely to Form A certification may no longer be
covered under Washington’s Pollution Prevention Planning regulations.
Some states would also lose funding for their pollution prevention
programs.  In Minnesota, TRI data is used in collecting revenue that
funds direct pollution prevention technical assistance to business and
industry. Minnesota’s pollution prevention fee is assessed to TRI
reporters based upon the number of Form Rs they submit and the number of
pounds of chemicals released and transferred offsite for treatment.  As
stated above, the proposal would considerably reduce the number of
facilities that submit Form R reports.  This, in turn, would cut revenue
available for pollution prevention technical assistance programs.  The
states of Colorado, Maine, Massachusetts and Mississippi have similar
mechanisms for funding pollution prevention technical assistance
programs.  NAHMMA believes that all of the chemicals currently required
to report under the Toxics Release Inventory are chemicals of sufficient
concern to justify excluding them from reporting on Form A.

The US Conference of Mayors wrote that, through the Conference's
pollution prevention policy, numerous cities in all parts of the country
have implemented local pollution prevention planning programs, in which
local governments assist businesses in their efforts to reduce their
waste and emissions.  Oftentimes, the detailed reporting on Form R
triggers a city's outreach, pollution prevention, emergency response,
and waste management programs.  If a 5,000-pound threshold is enacted
for the use of Form A, city governments would lose information from
facilities that might have small, but more toxic releases.  This would
make it much harder to target programs to those facilities that pose the
greatest risk and who could benefit greatly.

Response:

In response to concerns about supporting pollution prevention, EPA has
decided to modify the proposed 5,000-pound ARA by placing a 2,000-pound
limit on releases of non-PBT chemicals being considered for Form A.  In
other words, based on this modification to the proposal, in order for a
facility to use the Form A Certification Statement for a non-PBT
chemical, the facility cannot have more than 5,000 pounds of total waste
management (i.e., releases, recycling, energy recovery, and treatment)
of that chemical, and the contribution of releases toward the
5,000-pound total waste management amount must be no greater than 2,000
pounds.  By placing a 2,000-pound limit on the amount of releases that
may be applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total release pounds that would no longer be
reported on Form R under the proposed rule at full utilization of Form A
and at the same time, this rule preserves almost 80% of the burden
reduction offered by the non-PBT portion of the proposed rule.  EPA
believes that this final rule approach to expanded Form A eligibility
for non-PBT chemicals strikes a better balance than the proposed rule
insofar as providing meaningful burden reduction while at the same time
ensuring that the intended purposes of the TRI data are satisfied.

By limiting the release portion of the 5,000-pound ARA to 2,000 pounds,
EPA is structuring the Form A eligibility criteria in a way that
promotes treatment and recycling over releases.  Such a structure is
consistent with national policy on pollution prevention.  Section
6602(b) of the Pollution Prevention Act of 1990 reads:

The Congress hereby declares it to be the national policy of the United
States that pollution should be prevented or reduced at the source
whenever feasible; pollution that cannot be prevented should be recycled
in an environmentally safe manner, whenever feasible; pollution that
cannot be prevented or recycled should be treated in an environmentally
safe manner whenever feasible; and disposal or other release into the
environment should be employed only as a last resort and should be
conducted in an environmentally safe manner.

By raising the recycling, treatment, and energy recovery portions of the
ARA to a 5,000-pound maximum, while capping releases at 2,000 pounds,
EPA has built into the Form A eligibility criteria an incentive for
facilities to move away from disposal and other releases toward
treatment and recycling.  Further, by including all waste management
activities in the Form A eligibility criteria EPA is encouraging
facilities above the 5,000-pound ARA to reduce their total waste
management in order to qualify for Form A.  EPA believes that this
approach to expanded Form A eligibility for non-PBT chemicals balances
burden reduction against the need to provide information consistent with
the goals and statutory purposes of the TRI program and at the same
time, promotes pollution prevention and recycling and treatment over
releases.