1 Response to Comments Received on the January 10, 2005 Proposed Rule ( 70 FR 1674) to Modify the Toxics Release Inventory ( TRI) Reporting Forms Office of Information Analysis and Access, U. S. Environmental Protection Agency, Washington, D. C. ( 2005)

I. GENERAL COMMENTS IN SUPPORT OF THE RULE A. Comments supportive overall without reservations ( 1 comment)

Summary of Comments One commenter stated their overall support for the proposed rule. The commenter said that if the rule were adopted, it would reduce the burden associated with submitting annual Toxics Release Inventory ( TRI) reports by substantially reducing the amount of time that facility representatives spend each year on the task. The commenter also noted that they supported EPA's goal of enhancing the efficiency and effectiveness of the TRI program without impacting human health or environmental quality.

Response EPA appreciates receiving this comment.

B. Comments supportive overall but with reservations ( details provided in subsequent sections of this document) ( 23 comments)

Summary of Comments Twenty three commenters stated overall support for the proposed rule but had various reservations to one or more sections of the proposal. The commenters expressed support for streamlining TRI reporting requirements and reducing burden for TRI reporters. The concerns raised by these commenters are described in more detail in subsequent sections of this Response to Comments document.

Response EPA appreciates receiving these comments and has addressed specific concerns raised by the commenters in subsequent sections of this Response to Comments document.

II. GENERAL COMMENTS IN OPPOSITION TO THE RULE A. Comments expressing overall opposition ( 3 comments)

Summary of Comments Three commenters expressed overall opposition to the proposed rule. One commenter stated that while they understood that reducing the burden of reporting is an important goal for EPA, they believed that the TRI reporting partnership between EPA and the States had been ignored. The commenter strongly encouraged EPA address these issues before finalizing the rule. Another commenter raised concerns about poisons being released upon an unsuspecting American public and stated that the rule was on the wrong 2 track. Another commenter focused their opposition on the section of the proposal dealing with locational data.

Response EPA appreciates receiving these comments but disagrees with the commenters' contention that EPA ignored the partnership relationship between EPA and the states in this burden reduction effort. EPA held a TRI Conference on February 8   10, 2005 and invited states to attend. The Agency provided general information about upcoming TRI burden reduction activities, including this rulemaking effort. In addition, EPA held a meeting/ conference call with states on June 2, 2005, to specifically address implementation issues related to this rulemaking. EPA has addressed the concerns expressed by the commenter who raised a number of concerns regarding locational data under section IV. A. below.

B. Comments expressing overall opposition unless specific changes are made to the proposal ( details provided in subsequent sections of this document) ( 3 comments)

Summary of Comments Three commenters stated that they opposed the proposed changes overall unless a number of specific changes were made to prevent the loss of publicly available data or the erosion of data quality in the TRI program. They urged the Agency to adequately take into account the needs of data users, and provide full access to data about toxic chemical releases when considering options to reduce industry's burden.

One commenter stated that efforts to reduce reporting burden should never detract from the primary purpose of TRI providing accurate useful information to the public about chemical releases into the environment. The commenter asserted that the public has the right to know what is being put into the land they live on, the air they breathe, and the water they drink. According to the commenter, Congress recognized this right when it passed the statute creating TRI, and it is not EPA's role to undercut Congress's intention for the sake of burden reduction. While the commenter stated that many of the changes contained in EPA's proposed rule have merit and deserve serious consideration, they expressed concerns about several proposed changes and urged EPA to carefully consider the issues raised in their comments before finalizing these provisions.

Another commenter stated that they were concerned about several of the proposed changes in this rule and greatly concerned about a potential second round of " more substantial changes" to the TRI program. According to the commenter, without the critical public data provided by the TRI program, communities and individuals would no longer be aware of the toxic chemicals released in their neighborhoods, depriving them of critical information needed to protect their health and environment. In addition, the commenter asserted that TRI has been a proven tool for inspiring toxics use reduction methods among a variety of industries. The commenter urged EPA to make decisions protective of the public's access to information, instead of focusing on reducing burden to industry. 3 One of the commenters urged the Agency to develop burden reduction options that capitalize on technological advances and educational efforts rather than reductions in information collection. According to the commenter, electronic reporting is already being implemented and can continue to reduce reporting burden as it becomes more widely used by submitters as the software program becomes more refined.

Response EPA disagrees with the comments asserting that this TRI burden reduction would detract from EPA's statutorily mandated goal of providing useful information to the public about chemical releases into the environment. The Agency believes that we can meet our commitment to reduce reporting burden without compromising the usefulness of TRI data. As explained in more detail in other sections of this document, facility identification data will be supplied through existing information stored in EPA's Facility Registry System ( FRS). We do not expect these and other changes to other sections of Forms R and A to reduce valuable data. In fact, by reducing redundancies among various Agency databases and providing much greater access to information correction tools ( e. g., the Integrated Error Correction Process), the Agency believes the overall quality of information will be improved. In the case of other changes, such as range reporting for treatment efficiency, we believe changes will provide more realistic estimates of TRI reporting facilities' activities. In addition, today's changes will increase public access to information about reporting facilities' source reduction, recycling and other pollution control activities. Commenters will have the opportunity to raise concerns about the " more substantial changes" to the TRI Program during the comment period after that rule is proposed.

III. COMMENTS RELATED TO GENERAL POLICY ISSUES A. Proposed rule would provide minimal burden reduction ( 14 comments)

Summary of Comments Thirteen commenters expressed overall support for the proposal but contended that it would provide only minimal burden relief. One commenter stated that the proposal was well thought out and a step in the right direction but that its member companies estimated the " cost savings" to be only on the order of approximately 5%. The commenter noted that some of the changes proposed were for information that is collected one time and that it can be used from year to year. Thus, there are no real time savings for subsequent year reporters.

Another commenter stated that more significant revisions should be made to the TRI program to substantially reduce the burden on reporting entities. An additional commenter stated that while the changes proposed were positive steps, existing TRI ME software already automatically populates most of the fields that are proposed for change, and thus any additional burden reduction stemming from this proposal would be minimal.

One commenter contended that while it did not object to the proposed rule's changes, it objected to EPA's continued claim of meaningful burden reduction where none exists, and that in some instances the proposal would actually increase burden. Another 4 commenter said that although well intentioned, the proposed changes failed to address the foremost sources of burden in the TRI program, and would thus yield little, if any, real reduction in reporting burdens. The commenter went on to state that while the reporting of minor data, such as facility coordinates, waste treatment codes, or other program ID numbers were time consuming, they were not significant contributors to the burden associated with TRI requirements.

Response The changes finalized in today's rule are the first step in the Agency's larger effort to reduce reporting burden for TRI reporters. While these changes provide only a modest amount of burden relief, they are important nonetheless, and based on comments received, a majority of TRI reporters support this burden relief measure. As a few commenters point out, first time reporters will particularly benefit from removal of facility identification data elements. While these changes may not appear to substantially benefit subsequent year reporters, they will help EPA streamline our many database systems and centralize its facility identification data. The changes will thus eliminate redundancies throughout the Agency, which will in turn lead to future streamlined reporting processes and burden relief for industry.

EPA is committed to all of its ongoing burden reduction activities. As stated in the proposed rule, the Agency is pursuing a broader and more complex set of regulatory burden reduction alternatives. That effort is expected to provide additional regulatory relief for TRI reporters and is expected to be proposed in late summer 2005.

B. Rule would increase burden initially ( 4 comments)

Summary of Comments The commenters expressed concerns about the initial costs that would be imposed upon TRI reporters, as well as the states, if this rule were finalized. Several commenters referred to the transition costs that industry would have to bear, including the following: 1) revisions to in house training materials and courses and the need to retrain all appropriate facility staff, 2) changes to data collection spreadsheets and other documents, 3) increased corporate support required for responding to questions from individual facilities, and 4) adjustments to TRI analysis mechanisms already in place.

One commenter focused on the burden that frequent changes to TRI reporting forms impose upon industry. The commenter contended that the proposal offered extremely modest burden relief and urged the Agency to withhold the changes proposed in this rulemaking until the agency is ready to proceed with the more significant second set of reductions anticipated to be proposed later this year.

Response EPA acknowledges that any changes to the TRI reporting forms can impose additional initial costs on facilities in order for them to retrain staff and update various documents and database systems. However, EPA believes that a number of long term benefits will accrue as a result of these changes, and will outweigh the short term costs. In addition, 5 the Agency notes that while real, much of the cost and burden are not legally mandated compliance costs or burden and so are not attributable to this rulemaking.

C. Rule represents an unfunded mandate/ would increase burden on states ( 1 comment)

Summary of Comments One commenter contended that the burden and cost to the states of addressing the data changes in the proposal have not been addressed. The commenter stated that changes that would add or delete data elements represent an unfunded mandate for states. According to the commenter, changes in data structure which delete key data elements, such as the EPA program identification number, would require significant data system changes. To make matters worse, these changes would be added on top of any changes associated with the second phase of EPA's burden reduction effort. The commenter did not believe that the burden relief supplied by this rule would be great enough to justify the extra burden that would be placed on states. They concluded that the rule ignored the TRI reporting partnership between EPA and the States and strongly encouraged EPA to address these issues before finalizing the rule.

Response The Agency disagrees with the commenters' characterization that today's rule constitutes an unfunded mandate. See the Analysis in section VII D of the rule preamble. Although the commenter may be correct that changes in data structure could trigger data system changes for States, such changes are not a federally enforceable duty imposed on States by the federal government. Rather, the maintenance and operation of a State community right to know database is an elective activity that a State may modify or change at will. section 313 of the Emergency Planning and Community Right to Know Act ( EPCRA) does not impose any duties on States beyond requiring the designation of a receiver for chemical release reports. Creation of separate data systems and effort to keep them current are elective State activities.

Regardless, in the interest of the continuing partnership with the States, the Agency has and will continue to assist States in making whatever changes are necessary for their data systems as seamless as possible. Currently, the Agency provides translation tools for States to input disk and CD ROM based reports into their data systems as well as a pilot program for direct electronic reporting through the Exchange Network. These tools will be updated to incorporate the changes in this rule.

The Agency has also sought input from state agencies over the past decade and worked with them to improve State processing of TRI data, and its pilot project through the Exchange Network will make today's and future TRI forms changes easier to implement in state data systems. In addition, EPA sought and received input from the Environmental Council of the States ( ECOS) and state environmental agencies regarding the best means of implementing the replacement of data elements with FRS derived data as described in this rule 6 In EPA's Stakeholder Dialogue, we made a commitment to reduce the reporting burden for industry. The Agency believes this rule is a first step in attaining that goal. In order to fulfill the Agency's mission of protecting human health and the environment, it is imperative that EPA work hand in hand with its state partners. EPA has embarked in a number of efforts to enhance that partnership and advance EPA State mutual goals, recognizing that States may encounter burdens when changes are made to EPA's reporting requirements and EPA will work with States to ease that burden when possible.

D. Make proposed modifications effective for the 2005 reporting year ( 6 comments)

Summary of Comments Six commenters recommended that EPA finalize this rulemaking as soon as possible and make the changes effective for reporting year 2005. One commenter also recommended that the replacement of facility identification data with data from FRS be built into the next reporting year's version of TRI ME.

Response EPA agrees with the commenters that this rule should be made effective as soon as possible, and we will implement it in reporting year 2005. The changes finalized in today's action will be made to the TRI hard copy reporting forms, as well as in the TRIME reporting software. The Agency's annual TRI Reporting Forms and Instructions booklet will be updated to cover all of the changes finalized in today's action.

E. Rule should be delayed until the release of the Phase II rule ( 1 comment)

Summary of Comments One commenter contended that EPA failed to consider the burden imposed through frequent changes to the TRI reporting forms. Much of this increased burden, according to the commenter, is due to the need for subsequent year reporters to become familiar with the new reporting forms and instructions. The commenter urged EPA to minimize the burdens for reporters, data users, and EPA that are caused by repeated changes in the reporting forms, and recommended that the Agency withhold the changes proposed in this rulemaking until the second phase of EPA's burden reduction effort is ready to be released later this year.

Response Some of the changes being promulgated today will significantly improve the quality of facility identification information. Furthermore, other changes ( e. g., wastewater treatment range codes) were cited as providing substantial benefits to reporters by a number of reporters. The Agency believes that this rule offers significant and meaningful burden reduction measures and consequently sees no reason to delay its implementation.

IV. BURDEN REDUCTION OPTIONS INCLUDED IN THE PROPOSED RULE A. Replacement of certain facility data reporting requirements with existing data in FRS 7 1. Comments in support of proposed change ( 14 comments)

Summary of Comments Eight commenters supported removing certain facility identification data from Forms A and R, and instead, replacing it with existing data in the Agency's Facility Registry System ( FRS) so that TRI reporters would no longer have to report these data elements. Several commenters voiced support for greater consistency between EPA's program databases, as well as increased simplification and standardization of the facility identification data that EPA collects, stores and makes available to the public. One commenter asserted that the change would enhance TRI reporting efficiency and improve data quality, especially if existing databases are utilized for populating Forms R and A. Two commenters stated that the change would ease paperwork and reporting burdens and lead to greater consistency on data collection across Agency programs. Several commenters also stated that the change would help eliminate redundant data collection. One commenter stated that the change would promote the use of the FRS on a wider basis. Another commenter asserted that the change should help to avoid data entry errors and ensure consistent reporting of facility locational data. Another noted that the locational data should not have been collected in the first place.

Response EPA agrees with the commenters that the Agency's databases should be standardized and made as consistent as possible across various programs. We believe that removing section 4.6 from Forms R and A, and instead using pre existing facility identification data stored in the Facility Registry System ( FRS) will help achieve this objective. We are thus finalizing this change and expect it to help ease reporting burden and result in increased facility location data quality over the long run. This regulatory change is part of a larger Agency initiative to increase the reliability and accuracy of the Agency's FRS database system.

2. FRS should be kept updated and reporters should be able to correct inaccuracies in FRS ( 3 comments)

Summary of Comments Three commenters recommended that reporters be provided the opportunity to review and correct the latitude/ longitude data stored in the EPA Facility Registry System ( FRS) before removing section 4.6 from Form R and replacing it with locational data from FRS. One of the commenters also recommended that EPA keep FRS locational data updated in a timely manner.

Response EPA agrees with the commenters that TRI reporters should be allowed to review and correct their latitude/ longitude data in FRS. We will provide a means for doing this and will provide appropriate guidance in the annual TRI Form R instruction materials. EPA recently formed a new Geospacial team in the Office of Environmental Information that will, among other things, focus on improving the Agency's locational data. Since FRS 8 will serve as the Agency's authoritative source for such data, EPA has embarked on a number of activities to improve the data quality of locational data in FRS specifically, and ways to keep such data updated in a timely manner.

EPA already has in place an error correction process that can be used by state agencies, as well as the general public to correct inaccuracies in many of the Agency's databases, including FRS. The agency plans to improve access to this system to make it very easy for TRI reporters who submit data electronically to review and correct their data entries. Reporters who submit their reporting forms on paper will be able to view their submissions and correct inaccuracies through the Electronic   Facility Data Release ( e FDR) for reporting year 2004. The e FDR is expected to be publicly released in Fall 2005.

3. " Facility" is defined differently in EPCRA ( TRI) than in RCRA ( 1 comment)

Summary of Comments One commenter cautioned EPA that the definition of " facility" under EPCRA is not necessarily the same as the definition of " facility" under other statutes, and that this could affect the use of FRS locational data. The commenter asserted that under EPCRA two sites that are adjacent and/ or contiguous that are owned by the same entity are considered to be one facility ( even if separated by a public road). However, under the Resource Conservation and Recovery Act ( RCRA) they would be considered two facilities. As such, there may be instances where the latitude/ longitude data from each source is different for the same " facility".

Response Variation in facility definitions as one crosses program boundaries is one of the major challenges the Agency faces in its efforts to develop a central facility registry. However, it is a challenge which already faces some users of TRI information. For example, users of information for RCRA assessments are already faced with the challenge to create a map between multiple RCRA facilities and a single TRI facility, when the facility definitions are not consistent. Likewise, there may be cases where the TRI reported RCRA IDs do not constitute the totality of RCRA IDs associated with a given TRIFID due to a limited number of blanks on the TRI form. Presently, crosswalk checks are completed manually by data users.

The conversion to the use of FRS for facility information should actually strengthen the mapping across programs with different facility definitions. To understand why this is so, one needs to understand the meaning of a facility in FRS. In FRS, each entity with a discrete street address is an independent facility. Where individual programs will disagree is in the case of more complex facilities where ownership or programmatic considerations have lead to clustering of multiple FRS " facilities" into a single entity for the purposes of a program ( e. g., TRI).

A key step in the transition to the use of a locational data from FRS will be the creation of a program map. This map will use the 2004 TRI responses to assign a valid TRIFID to 9 each relevant FRS facility. Where multiple FRS facilities have the same TRIFID, all will be assigned the same TRIFID. This map will ensure that the locational information for the TRI facility contains not only all relevant locational information, but also all relevant program IDs. Furthermore, the locational information retrieved will be superior to current TRI information because it will have method, accuracy and description ( i. e., whether it is centroid based, an outfall, etc.). This change will provide a much more comprehensive look at all of the locational information for TRI facilities. Furthermore, the enhanced access to the Integrated Error Correction Process ( IECP) for data suppliers and users should result in ongoing improvement in locational information.

4. Flaws in FRS ( 3 comments)

Summary of Comments The commenters expressed concerns regarding inherent flaws in the Agency's Facility Registry System ( FRS) that compromise the Agency's efforts to consolidate environmental data, minimize reporting redundancies and create a single identification system. Contrary to statements in the proposed rule, one commenter claimed that facility identification records in FRS are not accurate or authoritative. The commenter asserted that this is supported by industry representatives who must reconcile FRS data with company records. Another commenter stated that the FRS does not always cover the TRI dataset containing locational data. Several commenters emphasized that it was imperative to enable the public to easily retrieve all environmental information about a specific facility.

Another commenter asserted that FRS gets its data from individual program databases. The commenter further stated that too often, basic facility identification information in these databases is inconsistent, erroneous, incomplete or out of date. These inaccuracies are magnified when a matching program such as FRS attempts to integrate the data. The commenter contended that EPA's FRS data stewards diligently attempt to verify and correct mistakes in the database, but this does not make up for the fact that the program staff who are most engaged with facilities do not use FRS and have no incentive to keep it up to date and accurate. The commenter claimed that the problems with FRS are such that a recent report to EPA by the National Academy for Public Administration ( NAPA) recommends that EPA revamp its system and create a " Master File of shared facility identification information that is legally recognized in all media programs at all levels of government as the sole definitive source of information for the data elements it covers."

Response EPA disagrees with the commenters. The Agency examined FRS coverage of EPA program identifiers in the context of RCRA identification numbers ( hereafter referred to as RCRA IDs) to test the commenters' concern. The FRS database contains all EPA program identification numbers that are stored in EPA's national program system databases. Regarding RCRA, FRS contains all the RCRA IDs from the RCRAInfo database, and is thus a definitive source for such information. The Agency examined over 10,000 TRI forms with RCRA IDs from the 2002 reporting year. These facilities 10 were selected because they were used by the Office of Solid Waste in its annual evaluation of waste minimization progress for approximately thirty chemicals related to a federal Government Performance and Result Act ( GPRA) goal. In its evaluation, the Office of Solid Waste uses the RCRA IDs in conjunction with Form R sections 5 and 6 data to estimate the quantities of priority chemicals that may be contained in hazardous versus non hazardous wastes. This activity is analogous to those of interest to the commenters.

Approximately 800 RCRA IDs were found in the TRI database that did not match RCRA IDs in the RCRAInfo database. Some of these RCRA IDs contained obvious transcription errors ( i. e., " o" substituted for " zero", etc). It is not clear to what extent the remainder represent more subtle transcription errors or other factors, although it is important to note that the Office of Solid Waste ( OSW) maintains an active data stewardship program. On the other hand, it is also important to note that the TRI Reporting Form has only two spaces for the listing of RCRA IDs. Because of differences in facility definitions, it is quite reasonable to assume that a current TRI facility could be associated with more than two RCRA IDs. Given these factors, and the fact that FRS contains RCRA IDs assigned by EPA's RCRA program, there can be little doubt that FRS is a more definitive source of information on RCRA IDs, and that cross program coverage will actually be improved by conversion to the use of FRS.

We believe that the few cases in which there may be information gaps can be addressed by improving communication between EPA's Office of Environmental Information, which operates both the TRI and FRS programs, and the other Agency offices responsible for the program identification data at issue. Probably the most difficult example of what will be needed relates to IDs for underground injection sites reported under the UIC program. Presently, UIC IDs are not collected on the federal level except as a part of TRI. States maintain these records. Unfortunately, because of form limitations, TRI reporters have not necessarily provided a full listing of UIC permitted wells. EPA's Office of Information Collection is working with the Office of Ground Water and Drinking Water, however, to gather UIC information from individual states to include in FRS. It is anticipated that this more complete information will begin to be available in 2006.

It is important to note here that the FRS database covers all the TRI reports for reporting year 2003 and has retained all TRIFIDs ( there are over 49,000 of them) since the TRI program began in the late 1980' s. FRS also has the latitude and longitude coordinates for all historical TRIFIDs. The Burden Reduction Rule will not impair the public's access to information about TRI reporting facilities, including locational data and EPA program identification numbers. These data will continue to be publicly available through various TRI access tools. Only now they will be supplemented by the larger and more authoritative data files in FRS. To the extent that inconsistencies and errors are identified in the future, the Agency's Integrated Error Correction Process ( IECP) will provide a convenient and effective mechanism for bringing these issues to the Agency's attention for resolution. 11 As to the commenter concern with the conclusions of the draft NAPA report, it is premature to comment on this effort. There is no final NAPA report. The draft report, which is still being prepared under contract to the Agency, is still undergoing revision. Regardless, the purpose of that effort is to find ways for better integrating facility information. The TRI program's movement to the use of FRS' master files of information rather than continuing to rely on a stand alone system of program identifiers and locational values would appear to be entirely consistent with the commenters' suggested approach to maintaining Federal data.

5. Lapses in pulling locational data from FRS ( 1 comment)

Summary of Comments One commenter was troubled about how long it would take to populate FRS with TRI data and complete data quality checks. They urged EPA to ensure that no lapses occur in the availability of locational data as a result of this process.

Response EPA will ensure that there is no lapse in making locational data available for TRI data users. Locational data is already stored in FRS and the Agency will provide a seamless transition from collecting locational data from TRI reporters to pulling existing locational data out of FRS and providing it along with other facility information to TRI data users starting with the 2006 public data release for reporting year 2005 information.

6. Delay implementation until all states are actively involved in EPA's state exchange network ( 2 comments)

Summary of Comments Two commenters asserted that ideally, EPA should refrain from relying on FRS to supply data to TRI until all states are participating in the FRS program. One commenter stated that 14 states are still are not active in the National Environmental Information Exchange Network, commonly referred to as the state exchange network. The commenter asserted that data regarding facilities in non participating states are not being scrutinized by people most familiar with those facilities. According to the commenter, until all states are part of the network, EPA lacks the on the ground intelligence needed to ensure that FRS data is accurate or complete.

Response EPA agrees that ideally all the states should be part of the existing EPA state exchange network. We believe the commenter that urged EPA to wait to implement this rule " until all states are participating in the FRS program" may not have understood that FRS contains data about regulated facilities' identification information provided by EPA's many database systems and by many state environmental agencies. States do not need to take any specific action to access information data from FRS. Anyone, including state agencies can access data from FRS at any time. While not all states currently participate in the EPA state exchange network, the vast majority of states do participate, and EPA is 12 working closely with non participating states to help facilitate their full participation in the near future.

We do not agree with the commenters that the rule should be delayed until all states are participating in the state exchange network, nor does EPA agree that the Agency lacks the on the ground intelligence needed to ensure that FRS data is accurate or complete until such time. The FRS is already functioning and will be further enhanced as part of the effort to implement this rule. EPA will provide all states the opportunity to correct inaccurate data maintained for use by TRI data users. Reporters participating in the state exchange network will be able to correct inaccurate information by using the Agency's Integrated Error Correction Process ( IECP). States that do not yet participate in the state exchange network will be correct inaccurate data in the Electronic   Facility Data Release ( e FDR) for reporting year 2004. The e FDR is expected to be publicly released in Fall 2005. We will work closely with states to ensure a smooth transition to the switch in utilizing pre existing facility identification data in FRS.

7. Conduct a study to determine the quality of facility identification and locational data in FRS ( 4 comments)

Summary of Comments Several commenters recommended that EPA delay implementing the use of FRS to supply facility locational data and EPA program identification numbers until a pilot study is conducted to ensure that this data is of equal or higher quality in FRS than is contained in the TRI database. One commenter stated that contrary to statements in the proposed rule, facility identification records in FRS are not accurate or authoritative. The commenter stated that this problem is supported by industry representatives who must reconcile FRS data with company records. In addition, according to the commenter, problems arise when the TRI dataset contains locational data for facilities that FRS does not cover. While having all states as part of the information exchange network may help address these problems, the commenter asserted that there are inherent limits to this kind of after the fact reconciliation. The commenter urged EPA to delay implementation of this section of the rule until the FRS dataset is complete and the agency can ensure the accuracy of the data.

Another commenter stated that unless EPA conducted a small study to compare subsets of the FRS and TRI database information on program identification numbers, EPA could risk losing accuracy in this important data. If the study revealed that FRS contained less accurate data than the data in the TRI database, the commenter contended that EPA should eliminate this section of the rule until the FRS data is sufficiently improved.

Response As stated earlier in the response to Comment IV. A. 5, the Agency did conduct an analysis of RCRA IDs and concluded FRS provided higher data quality than under separate TRI reporting. 13 In addition, a separate assessment was conducted of locational information in FRS versus that contained in the TRI data base. The locational information in the two systems was compared on the basis of performance against two criteria: a quality screening approach and on the basis of their conformance to the Agency's data standard for locational information.

Absent very detailed site information, it is difficult to design a locational screening test. What the Agency did was to compare the locational data stored in FRS versus such data in the TRI database on a county basis ( i. e., what percentage of reported locational data were within the boundaries of the counties where the facilities' street addresses were located). While it is possible for street address to vary appreciably from the location of the center of production, the Agency believes this test provides a first approximation of relative performance. We found that 98% of all FRS locational data as opposed to only 97% of all TRI locational data met the Agency data quality criteria. Further, in the same study, information was obtained on the portions of reporting year 2003 TRI facilities in FRS that met this criterion. Therefore, on the basis of this broad measure, the two systems had comparable information.

For the second test, the Agency looked at how the data conformed with the Agency's data standards for locational information ( i. e., a description of the method of data collection and what is measured, as well as probable accuracy). Fully 89% of all TRI facility locational data for reporting year 2003 would have been able to meet the Agency's data standard requirements if FRS had been used to derive TRI locational data. Currently, none of the TRI locational data can meet the Agency's data standards for locational information, which require metadata for the method, accuracy and description of what the latitude and longitude coordinates represent.

Over the coming months, the Agency is implementing a program to ensure that virtually all TRI facilities will have locational information that meet the Agency's data standard requirements. An implementation plan describing this program has been included in the docket that accompanies today's action. Furthermore, through the IECP, EPA provides the opportunity to correct inaccurate data maintained for use by TRI data users.

8. Locational data ( latitude longitude coordinates) in section 4.6 a. Impact upon small businesses ( 2 comments)

Summary of Comments Two commenters asserted that the proposed removal of the requirement to report latitude/ longitude data in section 4.6 and to replace it instead with existing data in EPA's Facility Registry System ( FRS), was the only part of the proposal that would have any impact on small firms. However, both commenters stated that it would only provide burden relief to small businesses that are first time reporters, not to small businesses that are subsequent reporters.

Response EPA appreciates receiving information about proposed changes that could provide some 14 burden relief to small businesses. We agree with the commenters that this proposed change would be particularly helpful for those small businesses that are first time reporters. EPA has finalized this section of the proposal in this final rule. While we expect it to provide some relief to all small businesses, we believe that first time reporters will benefit the most from the change.

b. New reporters ( 4 comments)

Summary of Comments Several commenters expressed concern that EPA's FRS database does not often have locational data previously stored for first time reporters. One commenter noted that during EPA's TRI Conference on February 9, 2005, an Agency employee stated that TRI's Reporting Year ( RY) 2003 data contained over 400 new facilities for which FRS did not have locational data. According to the commenter, even if this were an above average number of new facilities, it clearly indicates that there will be a significant number of data gaps in TRI for those facilities that have not previously submitted lat/ long data to the Agency. The commenter asserted that this data gap problem could also be exacerbated by the fact that not every state is participating in EPA's FRS program. Because it is unclear whether address matching will provide the desired results, the commenter recommended that EPA modify the rule to require reporting of locational data by first time reporters.

Another commenter encouraged EPA to delay implementing this change until key aspects of FRS are addressed. An additional commenter stated that data gaps in the FRS database could be best addressed by requiring new reporting entities to include additional information on facility identification data the first time they are required to complete Form A or Form R. The commenter added that many examples exist in which first time users are required to provide additional identification that is not required of repeat users.

Response EPA acknowledges that there are a relatively small number of new facilities that submit TRI Form R or A reports each year for which the Agency may not already have locational data stored in FRS. The Agency disagrees, however, that new reporters should be required to submit locational data. EPA plans to use street address matching in combination with the Agency's facility siting tool to populate FRS with locational data for those cases in which FRS has no previous locational data. Reporters, as well as the states and the general public will be provided the opportunity to submit a request for correcting inaccurate facility locational data by using the Agency's Integrated Error Correction Process ( IECP). As stated in the proposed rule, the IECP is part of an ongoing EPA effort to improve the quality of EPA's publicly available data. Through the IECP, the public can directly notify EPA of a data error they've identified. Once the error report is generated, it is routed within EPA to appropriate program official, who has the authority to make corrections to the program database. Last year, IECP handled over 8,000 error notifications and continues to operate as a simple, effective way of resolving errors in EPA's databases. 15 c. Address matching in FRS can provide inferior lat/ long values ( 2 comments)

Summary of Comments Two commenters expressed considerable objections to the use of address matching for deriving TRI facility locational data ( longitude and latitude coordinates). One commenter stated that the two most apparent problems with this method are: 1) If the facility is in a rural or unpopulated area, offshore, etc., then the software may be unable to match the address to a location; and 2) The facility's mailing address may not be the location where the toxic releases occur. For example, if a facility picks up mail at a headquarters building that manages several facilities, this would create a different lat/ long than where its stacks are located.

The second commenter asserted that as much as 70% of the locational data derived from various EPA databases and stored in FRS may be based on address matching rather than on a facility's actual location. The commenter maintained that some of the locational data in FRS may be based on wastewater outfall locations which can be long distances from the facilities. Reliance on these other databases, according to the commenter, would introduce significant error into the Agency's GIS applications.

Response The Agency disagrees with the commenters. EPA believes that street address matching, used in combination with our facility siting tool ( i. e., a geospacial application that uses aerial imagery to determine latitude and longitude coordinates), can provide credible locational coordinates. Furthermore, large facilities are extensively documented in FRS and many of these facilities have multiple coordinates from which to choose. EPA believes that new facilities are more likely to be small. We believe those facilities are especially likely to be well represented by street addresses.

Regardless of the availability of information in FRS, however, the Agency believes that it provides a better source of data than locational data for which there is no metadata, i. e., no explanation as to what was measured, how the information was derived, or its accuracy. We plan to use street address matching for new reporters and for other cases in which no credible locational data is available in FRS. Furthermore, because the Agency plans to include all locational information in the next e FDR, anyone interested in a particular facility will be able to easily raise concerns through the IECP about the value chosen to represent the facility.

As to the second comment, FRS has been operational since 2000 and continues to improve data quality. Many EPA programs utilize FRS and the IECP process is in place to facilitate receipt of suggested corrections to locational information. Despite these facts, only a very small percentage of IECP requests have involved locational updates.

As to the commenter's other concern, possible reliance of FRS on locations far from the facility, we also must disagree. FRS will provide a complete picture of all locational information available on a facility. Because FRS provides method, accuracy and 16 description data, it will be possible to know the reference point of the facility ( e. g., the street address, a stack, or some permitted portion of the facility) for which locational information is provided. To the extent that a preferred location reported out of FRS is incongruent with the intended use of the TRI information ( Note: use of an outfall may be an excellent choice if examining water releases), the data user may simply use another value for their purposes. This is a significant improvement on the current locational value of unknown accuracy.

d. TRI reporters should be required to use EPA's facility siting tool or GPS ( 1 comment)

Summary of Comments One commenter maintained that both TRI data and Geographic Information Systems ( GIS) data have become essential for communities to understand their local environment. The commenter noted that both these tools have become essential components of any environmental justice analysis. The commenter voiced concern about the accuracy of latitude/ longitude data in the Facility Registry System ( FRS) and recommended that instead of removing section 4.6 from the TRI reporting forms, facilities should instead certify that the latitude and longitude data reported to TRI is obtained either from EPA's Facility Siting Tool or from a Global Positioning System device. According to the commenter, this would ensure that facilities provide more accurate information.

Response EPA agrees with the comment stating that TRI data and Geographic Information Systems ( GIS) data have become essential tools for communities and for those conducting environmental justice analysis. EPA uses selects a " best pick" from its GIS locational reference tables ( LRT) tool in FRS to determine the appropriate latitude/ longitude coordinates for each facility. The LRT tool utilizes a variety of locational data tools, including GPS and the Agency's facility siting tool. The facility siting tool will be used by EPA to confirm the location of new facilities. The siting tool will also be made available to reporters and the general public who wish to submit latitude/ longitude data through the Agency's Integrated Error Correction Process ( IECP).

e. State derived locational data ( 1 comment)

Summary of Comments One commenter expressed concern that ten percent of reporters each year are new and that a large number of these new reporters have no other affiliation with EPA or the states, and thus have no locational data available to draw from. The commenter contended that it was relatively easy for a facility to determine its latitude/ longitude coordinates, but it would be a burden to the states to make those determinations. The commenter also voiced concern about how state derived locational data could potentially differ from EPA's data in EPA's FRS database.

Response As indicated in the response to comment IV. A. 8. b. above, only a relatively small portion 17 of new facilities are expected to lack historical information in FRS. The figure cited by the EPA employee at the National Conference represents less than two percent of the facilities covered under TRI. EPA fully expects that the combined use of the street address matching algorithm coupled with the siting tool will, with rare exceptions, identify sound locational coordinates for the rest. Consequently, EPA does not believe that this rule will impose significant burden on the states.

The Agency will continue to make all facility identification data available through FRS. The FRS database covers all the TRI reports for reporting year 2003 and has retained all TRIFIDs ( there are over 49,000 of them) since the TRI program began in the late 1980' s. FRS also has the latitude and longitude coordinates for all historical TRIFIDs. The Burden Reduction Rule will not impair the public's access to information about TRI reporting facilities, including locational data and EPA program identification numbers.

States can access data from FRS at any time. State agencies are under no federallydriven requirements to collect and store state derived locational data. However, states are encouraged to report facility locational data that includes metadata meeting EPA's data standards ( i. e., method of collection, probable accuracy and description codes) in EPA's FRS database through the Agency's Integrated Error Correction Process ( IECP). Through the IECP, states can also notify EPA of a data error they've identified in EPA's facility locational data.

In addition, EPA will provide states information about locational data and EPA program identification numbers prior to the Agency's public data release so that states can comply with various deadlines tied to state statutorily and regulatory driven requirements. Furthermore, the Agency will continue to work with the states to improve electronic information exchange capability and the timeliness of such exchanges.

f. Only allow TRI ME submitters to get exemption from reporting lat/ long data ( 1 comments)

Summary of Comments One commenter recommended that EPA consider allowing only those submitters using TRI ME software to get an exemption from reporting latitude and longitude data. The commenter asserted that the TRI ME software could allow for the automatic retrieval of FRS locational data, which would reduce burden for the submitter and also encourage facilities to use TRI ME. The commenter added that the TRI ME software provides the best way to reduce reporting burden.

Response EPA agrees with the commenter that the Agency's TRI ME software significantly reduces burden on reporters, as well as on state agencies that also collect and disseminate TRI data. However, the Agency disagrees that only those reporters who submit TRI reports using TRI ME software should be allowed not to report locational data. Other reporters' forms are processed through the Agency's TRI data processing center. The center will be using the siting tool and FRS to complete these fields for other facilities. 18 9. EPA program identification numbers in sections 4.8  4.10 a. Facility ID numbers are important to TRI and need to be collected from TRI reporters ( 2 comments)

Summary of Comments Three commenters emphasized the importance of EPA facility identification numbers to TRI data users, including various EPA program offices and the general public. One commenter cited as an example, the use of Resource Conservation and Recovery Act ( RCRA) identification numbers to calculate " double counting" of TRI chemical disposal transfers sent to TRI facilities that report the same chemicals again. The commenter stated that RCRA IDs allow transfers of chemicals ( marked with RCRA IDs in section 6 of Form R) to be matched up with receiving TRI facilities ( marked with RCRA IDs in section 4.8). The commenter cited a 1998 report by the public interest organization, National Environmental Trust, titled " Out of Sight, Out of Mind?," to demonstrate the usefulness of collecting EPA program identification numbers in TRI. The report used the Underground Injection Control ID numbers to help analyze the completeness and accuracy of underground injection well data in EPA databases. According to the commenter, these examples are just a small sample of the many uses for this data. The commenter recommended that EPA conduct a small study to demonstrate that FRS data is of equal or higher quality to TRI's program identification data before removing these data elements from the TRI reporting forms.

Another commenter stated that questions have been raised as to the reliability of the program identification data stored in FRS. The commenter referenced the preamble to the proposed rule, stating that experts have raised concerns about how this change would affect existing information only available through TRI.

Response EPA agrees with the commenters that the EPA program identification numbers in section 6 of Part II of the Form R are important for avoiding double counting of chemical management and releases. Those IDs will continue to be collected. What is being eliminated is the requirement to report IDs in sections 4.8 through 4.10 of Part I of the TRI reporting forms. The Agency appreciates that this information is also important and is used extensively by various EPA offices, the states and general public. This information will not be lost. Program identification numbers previously reported are already stored in FRS and will continue to be available to data users.

In addition, as discussed in the response to section IV. A. 4. above, the Agency has conducted a study of RCRA IDs and concluded that, for most programs, FRS provided higher data quality than TRI reporting. With respect to UIC IDs, work is already underway to make FRS a comprehensive source of such information in the future. For the interim, we believe that the few cases in which there may be information gaps can be addressed through EPA's Integrated Error Correction Process ( IECP).

b. Lag in availability of program ID data in TRI Explorer ( 1 comments) 19 Summary of Comments One comment was received expressing concern about a lag in the availability of EPA program identification data if EPA removes the program identification numbers from the TRI reporting forms. The commenter cited the importance of this data to a variety of community groups across the country and urged EPA to quickly address this potential problem so the public would not experience a lag in its use of the TRI Explorer.

Response The FRS already stores EPA program identification data. EPA will ensure that there is no lag in the availability of such data in TRI Explorer or Envirofacts, the two EPA data applications that TRI data users rely upon to access TRI related data. By the time that the TRI Public Data Release ( PDR) is published, all applicable FRS data will have been copied into the TRI database for publication.

c. States' need to use RCRA ID numbers ( 1 comment)

Summary of Comments One commenter asserted that the EPA program identification numbers on the TRI reporting forms are used by state environmental agencies as a cross reference for other program applications. According to the commenter, at least one state uses the data as a link to hazardous waste generator reporting, in addition to its use as a key identifier for TRI facilities. They expressed concern that the proposed rule did not address how states would receive these data elements if they are not supplied with the Form R. The commenter contended that many states have developed their own data systems to manage the TRI reports filed with the state and they regard TRI reporting as a joint EPA State partnership since facilities are required to file their forms at both the Federal and state levels. The commenter expressed concern that the data elements states need to manage their TRI data will be lost if this proposed change is finalized.

Response EPA appreciates receiving information about the concerns of state environmental agencies regarding program identification numbers. As EPA stated in the proposed rule, the program identification information that was proposed for removal from TRI's reporting forms, will still be made available to TRI data users. The program identification number data that have been collected through the TRI program are stored in the Agency's Facility Registry System ( FRS), along with facility records from other EPA national program systems and state master facility records. The FRS data are subjected to rigorous verification and data management quality assurance procedures. We believe that extracting program identification number data from FRS will reduce reporting data redundancies and improve the data quality of all facility identification information. We will ensure that program identification data is not lost and will work closely with state agencies to increase their access capabilities regarding facility identification data.

B. Removal of section 5.3, column C: Percentage of total quantity of toxic chemicals contributed by stormwater 1. Comments in support of proposed change ( 14 comments) 20 Summary of Comments A number of commenters expressed support for the proposed removal of this data element. Reasons cited by the commenters included the complexity of measurement, a belief that information was sufficiently imprecise to render it meaningless, its availability from other sources ( i. e., the National Pollution Discharge Elimination System permit program), and a belief that nobody was using the data. On the other hand, some of the commenters supporting the change indicated that its removal would offer no meaningful burden relief because the information was already calculated under another program or that they had created simple spreadsheets that handled the calculations.

Response There does not appear to be a consensus about the complexity of measuring the percentage of total quantity of toxic chemicals attributed to stormwater, nor to the availability of this data from other sources. Some commenters have found ways to streamline their efforts, while others have not. The Agency will, as resources permit, consider whether additional guidance may be helpful to respondents. As to the availability of this information from other sources, the commenters were again divided. There clearly are areas of non coverage by other data bases, and at a minimum, it would be difficult to pull the information together in one place to inform the public and other data users. Furthermore, even if it could be pulled together in one place, there inevitably would be difficulties introduced by trying to harmonize TRI and NPDES data premised on different assumptions or measurement approaches. Consequently, EPA has decided not finalize this portion of the proposal. We believe the continued collection of this data element best fulfills the EPCRA reporting goals of the program.

2. Comments opposed to the proposed change ( 3 comments)

Summary of Comments Commenters opposed to the removal of this data element cited a number of reasons for its retention. Foremost among these was that they viewed this data element as important for understanding periodic spikes in overall water releases that may be caused by stormwater run off. One commenter stated that it is not uncommon for the overall water releases reported in TRI to rise or fall because of a few facilities with large releases associated with stormwater. The commenter contended that stormwater runoff often dominates such large releases, and the inclusion of this data element allows users to better understand what drives year to year variations in water release data, and to detect whether increases were due to production changes or rainfall. According to the commenter, directing data users to get this information from the NPDES system is not an adequate option. Removal of the data element would require data users to cobble together information about the percentage of stormwater contribution from various EPA database sources according to the commenter. 21 Another commenter asserted that phosphate mining stacks may be an example of a sector that reports significant quantities of toxic chemicals contributed by stormwater, but is not part of the NPDES system. The commenter requested EPA to examine whether there are other sectors for which the public cannot get the same data from NPDES before eliminating this data element. The commenter also asserted that integrating facility data among EPA's databases is not an easy task, but requiring facilities to report data that they have already reported to EPA is not a significant burden for them.

Response In response to the concerns of commenters opposing the change, EPA contacted a number of programs within the Office of Water. What was discovered was that there are indeed a number of people and programs who make use of this information. For example, the Division of Engineering and Analysis in EPA's Office of Water uses this data element in the program's pollution control activities and the Agency's biennial report to Congress under section 304 B of the Clean Water Act for just the reasons cited by the commenters.

Based on the public comments received and additional information gathered from EPA's Office of Water, the Agency now better understands how this data element is used by EPA program offices, states, communities, researchers and other TRI data users. The Agency has thus decided not to remove column C of section 5.3 from Form R. While EPA acknowledges that it may be difficult for some facilities to estimate the percentage of the total quantity of toxic chemicals contributed by stormwater, EPA believes that this data element provides important information that helps researchers, communities and other TRI data users make year to year comparisons of discharges of toxic chemicals to water that is unavailable elsewhere. We believe the continued collection of this data element best fulfills the EPCRA reporting goals of the program and therefore, EPA will not be finalizing the proposal to eliminate column C of section 5.3, part II of the Form R.

C. Modifications to parts of section 7 1. Reduction of codes in section 7A, column B: On site waste treatment methods & efficiency a. Comments in support of proposed change ( 11 comments)

Summary of Comments Ten commenters supported EPA's proposal to reduce the number of on site waste treatment codes and make them more consistent with the reporting codes used in EPA's Biennial Hazardous Waste Report. The commenters stated that the proposed change would reduce the reporting burden for TRI reporters and make the TRI program more consistent with the RCRA program. They contended that the proposal, if finalized, would make it easier for facilities familiar with the RCRA biennial report to complete Form R. On the other hand, there was one commenter who stated that some TRI reporters were not familiar with the RCRA codes and that learning these codes would actually increase burden.

One commenter stated that this was one of the sections of Form R that required a large 22 amount of resources for little benefit to the TRI data user community. On the other hand, two commenters voiced opposition to reducing the number of treatment codes, with one emphasizing that they wanted accurate reporting rather than " simplified" reporting.

Response EPA agrees with the commenters who asserted that this change will improve data quality. We believe that it will provide more consistency with EPA's RCRA program and across EPA programs and prevent confusion that can occur when there are a large number of related codes.

As to the concerns relating to familiarity with RCRA codes, we believe that most facilities will be familiar with the codes in the RCRA biennial reporting program, partly due to the high percentage of TRI respondents who presently report RCRA IDs. For those reporters that exclusively apply air emissions and/ or gas stream treatment methods, nothing would change; they would continue to not need to use the hazardous waste treatment codes. So, it is not clear how the shorter list would impose any burden on them. While there may be an initial period of adjustment, EPA believes that the longterm burden reduction benefits greatly surpass any short term drawbacks.

To facilitate a smooth transition, EPA will include additional information in the annual TRI reporting forms and instructions manual. The instructions will define each of the new codes, explain the few minor differences that exist between the new TRI codes and RCRA biennial report codes, and provide a map describing the relationship between the old treatment codes and the new ones. The map will serve as a guidance tool that expands upon the written instructions.

b. Comments opposed to the proposed change ( 2 comments)

Summary of Comments One commenter voiced opposition to reducing the number of treatment codes, emphasizing that he or she wanted accurate reporting rather than " simplified" reporting. A second commenter stated general opposition to this proposed change, along with the proposed use of range reporting in section 7A, contending that such changes would represent a loss of data.

Response EPA disagrees with the commenters. No specific information or compelling examples were provided by commenters regarding potential data loss if the treatment codes in section 7A column B were reduced and made consistent with the hazardous waste treatment codes used in the Agency's RCRA biennial report. Rather, EPA believes that this change will improve data quality because it will prevent reporters from overspecifying their treatment trains. Consequently, EPA will reduce the number of treatment codes used in section 7 column B to the 18 hazardous waste H treatment codes used in the RCRA biennial report and seven air emissions treatment codes from the original 64 TRI treatment codes. 23 c. Retain current air emissions and gas stream treatment codes ( 9 comments)

Summary of Comments Nine commenters expressed concerns regarding the removal of air emissions treatment codes in the proposed consolidated treatment codes for section 7A, column B. Several of these commenters recommended that the Agency retain the seven existing air emissions treatment codes ( A01 to A07). Many commenters stressed their concern about the lack of codes to cover the treatment of gas streams, which one commenter asserted was the primary means by which utilities reduce their toxic chemical releases, and the primary waste treatment method used at electric power plants. Another commenter stated that since the on site treatment of acid aerosols are among the most voluminous gas streams reported in section 8.6, it was especially important to make air emissions codes in section 7A, column B available to accurately capture this type of treatment. Without specific air emission codes, they maintained that they would have to use the code for " other treatment" ( H129) and that would not provide any useful information to TRI data users.

One commenter stated that the current 64 treatment codes were barely enough to adequately describe their air pollution control devices. The commenter went on to say that if the proposed 18 codes were adopted, it would create a high degree of confusion that would be unwarranted for a streamlining effort. In such cases, according to the commenter, facilities would be forced to use the H129 Other treatment code, which would result in data of little value, and it would thus be better to remove the data element entirely.

Response EPA agrees with the commenters that it is important to adequately describe the treatment methods used for air emissions and gas streams. Based on the comments submitted, the Agency better understands and appreciates the necessity to include air emissions codes in section 7A, column B of Form R. While EPA intended to propose the complete consolidation of the treatment codes in section 7A, column B to make them consistent with the hazardous waste codes used in the RCRA biennial report, we inadvertently overlooked the fact that the RCRA codes fail to cover air emissions with an adequate degree of specificity. EPA agrees with the commenters that a substantial amount of valuable data would be lost if the seven existing codes for air emissions were to be removed. Consequently, this rule retains the seven existing air emissions codes used in section 7A, column B.

d. List should be even shorter than proposed  don't use RCRA codes ( 1 comment)

Summary of Comments One commenter recommended that EPA not use the RCRA H treatment codes from the RCRA biennial report for the hazardous waste treatment codes in section 7A, column B of Form R. The commenter stated a preference to use a shorter, more concise list of codes. 24 Response EPA disagrees with the commenter that RCRA H treatment codes from the RCRA biennial report should not be used in section 7A, column B of Form R, and that a shorter list of codes should be used instead. We believe that since the majority of TRI reporters also report the hazardous waste treatment methods they use in EPA's RCRA biennial reporting process, a consistent use of reporting codes will result in a larger reduction of reporting burden than a shorter version of the current list of TRI codes.

e. Treatment code H083 was missing from the proposed reduced list of codes ( 4 comments)

Summary of Comments Several commenters questioned why EPA omitted one of the RCRA H treatment codes from the list of 18 hazardous waste treatment codes proposed for use in section 7A, column B. Several of these commenters requested that EPA clarify whether this was an intentional omission. One commenter asked whether this omission required another Federal Register notice announcement to make a correction.

Response EPA inadvertently omitted treatment code H083 from the list of 18 hazardous waste treatment method codes that were proposed to replace the existing 64 treatment codes in section 7A, column B of Form R. We stated in the preamble to the proposed rule that we were proposing to replace the 64 treatment codes with 18 hazardous waste treatment codes, demonstrating that we intended to include all 18 codes despite only listing 17 codes. EPA recognizes the need to include treatment code H083 to capture air or steam stripping treatment, and has included the code in the final rule. Due to the fact that EPA received comments alerting it to this mistake, EPA does not believe that a supplemental proposal is needed to correct this omission.

f. Clarify treatment codes H082 and H083 ( 1 comment)

Summary of Comments One commenter questioned how the phrase used in a parenthetical in the proposed treatment code H083 "( as the major component of treatment)," would apply in sequential on site treatment methods where the approach is simply one step in a multi step process. They noted that the same parenthetical phrase might be applied to treatment code H082 as well if EPA used that code in the final rule. They contended that since several of the other treatment codes proposed for use in section 7A, column B did not include the parenthetical phrase used in the RCRA biennial report, that it should be omitted for codes H082 and H083 as well.

Response EPA had requested comments on the proposed reduction of codes in section 7A, column B, especially in respect to the use of the data. EPA appreciates receiving the comment requesting clarification on the use the parenthetical phrase at the end of the proposed treatment code H083 in section 7A, column B, "( as the major component of treatment)." 25 Based on the comment, EPA understands that the use of this parenthetical could cause confusion regarding sequential on site treatment methods where the approach is simply one step in a multi step process. Consequently, we have removed the parenthetical phrase from the final rule.

g. Clarify treatment codes H111 and H112 ( 1 comment)

Summary of Comments One commenter requested that EPA clarify the use of the RCRA hazardous waste treatment codes H111 ( stabilization or chemical fixation prior to disposal at another site) and H112 ( macro encapsulation prior to disposal at another site) in section 7A, column B. The commenter noted that the use of the phrase " another site" would pose a problem for TRI reporting facilities with on site landfills, as well as for facilities that use stabilization for the final treatment of their wastes. The commenter recommended that the phrase, " another site" should be removed from the treatment code description in the final rule.

Response EPA agrees with the commenter and is removing the phrase, " at another site" from the parenthetical description for treatment codes H111 and H112. We agree that the use of the phrase would unnecessarily restrict the use of these codes, and believe that the removal of this phrase will avoid confusing reporters who could otherwise use these codes to describe their on site treatment methods.

h. Clarify treatment code H121 ( 4 comments)

Summary of Comments Four commenters requested clarification of treatment code H121 Neutralization only. As they pointed out, the word, " only" would eliminate the use of this code by facilities that use neutralization as one of several steps in a sequence of waste treatment methods, rather than as the single method of treatment. One commenter contends that such a restriction would force facilities that use it as one of several waste treatment method steps, to use treatment code H129 Other treatment. Two commenters requested that EPA consider removing the word " only" from the treatment code description. Another commenter suggested that the word, " only" is relevant only to reporting under the RCRA Biennial Report, and didn't serve the purposes of TRI reporting.

Response EPA agrees with the commenters regarding the use of the word, " only" in the description of treatment code H121 in section 7A, column B. We acknowledge that the word could restrict the use of that code unnecessarily and force facilities that use neutralization as one of several steps in a sequence of waste treatment methods to instead use treatment code H129 Other treatment. EPA believes that more useful information can be derived from the proper use of treatment code H121 than H129 by facilities that use neutralization as either their only treatment method or as one of several steps in their 26 waste treatment process instead. The agency has thus removed the word, " only" from the H121 treatment code description.

2. Reduction in codes in section 7C: On site recycling processes ( 10 comments in support of proposed change / 1 comment opposed)

Summary of Comments Ten commenters supported the reduction of on site recycling process codes in section 7 C. Several stated that such a change would promote consistency between the RCRA hazardous waste and TRI reporting programs. One commenter stated that it would reduce unnecessary complexity. Several expressed support for the change because they felt that the three proposed codes would adequately cover the range of recycling activities that might be undertaken at a facility. In addition, the commenters contended that the change would not compromise the utility of TRI Program data. One commenter disagreed with this point and stated that the resulting data loss would be unacceptable.

Response EPA agrees with commenters in support of the code changes. The Agency has not been able to uncover any important use for the more detailed list of codes.

3. Elimination of section 7A, column C: Range of influent concentration ( 12 comments in support of proposed change / none opposed)

Summary of Comments Twelve commenters expressed support for removing the range of influent concentration data element under section 7A, column C. One commenter asserted that this change would provide the most significant amount of burden reduction of the changes proposed in this rule. Several commenters stated that calculating these concentrations for each chemical ( or chemical category) in each waste stream is very time consuming and often requires numerous assumptions. They also contended that the resulting data are of little value to the general public. Another commenter asserted that facilities have reported spending upwards of 40 hours or more to report on this data element, reflecting the significant burden associated with the requirement. Several commenters expressed support for entirely removing the data element or for making reporting optional, although there was a general recognition that the latter approach could create even more confusion.

Response EPA agrees with the commenters that removing the data element for range of influent concentration under section 7A, column C would reduce a significant amount of burden for TRI reporters. We acknowledge that a large number of facilities do not collect monitoring data and instead, provide estimates for this data element on influent concentration. The agency also appreciates the information provided by commenters regarding the proposal to allow TRI reporters an option to report this data element. We agree with the commenters that such an option could create confusion among reporters, and due to the inconsistent amount of data that would be reported, believe that it would provide information of only limited value to the public. 27 In the proposal, EPA stated its belief that this information was not widely used by States and the public as was anticipated when it was first included on Form R. No comments were submitted that opposed the removal of this data element, nor were any comments submitted that provided any information as to the extent of its use or why the data element was important to retain. Therefore, EPA believes that its original assumptions about this data element were correct, and has decided to finalize the removal of the data element.

No one opposed based on potential data impact removing this data element or the proposal to make this data element optional.

4. Use of range codes instead of specific percentage number in section 7A, column D: On site waste treatment efficiency estimate a. Comments in support of proposed change ( 6 comments)

Summary of Comments Several commenters expressed general support for allowing TRI reporters to use range codes instead of a specific percentage number in section 7A, column D. Two of the commenters stated strong support for this proposed change. Several commenters stated that a single value estimate suggests far greater certainty about removal efficiencies than exists in the real world and that it is difficult to estimate a precise percentage representing the treatment efficiency of the method. One commenter said that even when more precise data are available, it generally varies over the course of the year. The commenter contended that the use of ranges is a more reasonable approach, and covers any variance in the treatment efficiencies based on analysis. The commenter went on to say that the use of ranges would avoid the appearance of a precise estimate when the estimate was actually based on professional judgment.

Another commenter stated that since electric utility power plants operate in a variety of different ways over the course of a year and fossil fuels are heterogeneous, and thus the levels of trace substance in the fuel can vary even if the source of the fuel remains the same, a single reported treatment efficiency value is nothing more than a long term average value.

Several commenters also asserted that this change would reduce burden without sacrificing the overall quality of the data.

Response EPA agrees with the commenters that allowing ranges to be reported in section 7A, column D would provide a more realistic estimate of on site waste treatment efficiency. We believe that the use of ranges will provide burden relief to facilities that currently find it difficult to estimate an exact percentage amount due to the several of reasons that the commenters pointed out about how their facilities operate. EPA has finalized this change in the final rule. We do not believe that this change will result in a loss of data since the data element will still consist of an estimate of the percentage of treatment efficiency 28 typically achieved by the waste treatment or disposal methods employed for each waste stream. We believe it will instead more accurately reflect the treatment efficiency variances that occur over the course of a facility's yearly operation.

b. Proposed change would provide minimal burden reduction ( 2 comments)

Summary of Comments One commenter asserted that the use of range codes for treatment efficiencies would not be a labor saver since its emissions estimating software already calculates the overall treatment efficiencies. A second commenter stated that in order to report within one of the ranges proposed by EPA, a facility must still undergo the analysis to get an exact percentage. The commenter noted that this is particularly true in the higher ranges, where most reported efficiencies fall. The commenter concluded that no burden reduction would result from this change.

Response EPA disagrees with the commenters that little or no burden would be reduced as a result of this change. Comments were received from several commenters supported this change, asserting that it was difficult to derive an exact treatment efficiency percentage estimate for this data element. Not all facilities have access to sophisticated emissionsestimating software that can quickly calculate such a specific estimate. In addition, as several commenters stated, using a range of removal efficiencies would better reflect reality. The Agency has decided to finalize this section of the proposal.

c. Either provide an option to report exact percentage  or  add several high end ranges to make distinctions differentiating high efficiency level reporting requirements for incinerators ( 2 comments)

Summary of Comments Two commenters support the proposed change but voiced concern about the limited number of ranges provided in the high end of the proposed ranges. They preferred that EPA either allow TRI reporters, particularly incinerators, to report a specific on site waste treatment efficiency percentage estimate, or to provide additional efficiency percentage range categories at the upper end of the range scale. They claimed that this was necessary to distinguish unpermitted incinerators that do not meet RCRA mandated treatment efficiencies for some chemical wastes from those that do. They stated that to do otherwise would result in accurate but misleading information that would be contrary to the goals of the Community Right to Know Act and arguably the Data Quality Act. They said it would also contradict the Agency's attempt to meet the Pollution Prevention Act's goal of allowing the public to understand the ultimate destruction of toxic chemicals.

Both commenters recommend that if upper ranges were to be used instead of allowing reporters to use specific percentages, they should be changed to the following: greater than 99.9% to 99.99%, greater than 99.99% to 99.9999%, and greater than 99.9999%. 29 Response EPA appreciates receiving specific recommendations and agrees with the commenters that some adjustments should be made to the proposed upper ranges of treatment efficiency estimates in section 7A, column D. We have used similar, although not exactly the same treatment efficiency ranges as those proposed by the commenters. The upper level ranges that EPA used in the final rule include the following: greater than 99% to 99.99%, greater than 99.99% to 99.9999%, and greater than 99.9999%. These ranges were selected in order to ensure an equal distribution of the range categories, and to allow data users to continue to distinguish the performance of combustion devices in excess of RCRA hazardous waste and TSCA PCB incinerator standards. EPA believes that these revised range categories will provide a means for those TRI reporters who are achieving high degree of treatment efficiency to communicate that desirable outcome to the public. EPA is not going to allow TRI reporters to report a specific percentage amount in section 7A, column D since it could result in two sets of confusing data that would be impossible to combine for any meaningful assessment.

d. Reduce the number of ranges  use a broader mid range ( change from using two separate ranges, 90 95% and 95 99.9%  to one range, 90 99.9%) ( 4 comments)

Summary of Comments Four commenters support the proposed change but recommend reducing the total number of ranges used in section 7A, column D. They all favor reducing the number of ranges in the mid range. Three of the commenters proposed combining proposed ranges E2 ( greater than 95% to 99.9%) and E3 ( greater than 90% to 95%), so that there would be one category that covers greater than 90% to 99.9%. One commenter recommended changing the proposed to 0 to 50%, greater than 50% to 90%, greater than 90% to 99%, and greater than 99%.

Response EPA appreciates receiving specific recommendations on the ranges that would be most useful and relevant to use. In response to the comments EPA has reduced the number of reporting ranges for the lower and mid ranges from four categories to two ( greater than 0% to 50% and greater than 50% to 95%) in the final rule. However, the Agency cannot agree to consolidate the upper range codes. If, as the commenters suggested, the Agency consolidated greater than 90% to 99.9% into one range, over half of all respondents would be in that category, which would span a hundred fold variation in influent concentration. By dividing the ranges into greater than 0% to 50%, greater than 50% to 95%, and greater than 95% to 99%, the new categories will represent 18%, 20% and 29% respectively of all responses. Even the smallest of these intervals ( greater than 0% to 50%) allows a two fold variation in removal efficiency which should provide an adequate estimating margin for realizing burden reduction, while simultaneously distinguishing major differences in treatment performance.

e. The use of range codes in this data element would create problems for reporting in other sections of Form R ( 1 comment) 30 Summary of Comments One commenter asserted the proposed change in section 7A, column D could create problems with reporting in other sections of Form R. The commenter used an example of how the use of range codes can create problems for reporting data in other data elements. They cited problems in using values in sections 5 and 6 of Form R when compared against those reported in section 8. They said that in such cases, the values typically do not balance, e. g., often the use of range codes will result in a " NOTE" error on the Facility Data Profile, because the software evidently uses the midpoint of the range.

Response EPA disagrees with this comment. We do not believe that the use of range codes in section 7A, column D will affect reporting in other sections of the form, such as sections 5, 6 or 8. We will review the TRI ME and data quality software to ensure the change does not create errors in data processing.

f. The use of range codes in this data element would result in loss of data and set a bad precedent for employing range reporting in other parts of Form R ( 2 comments)

Summary of Comments Two commenters opposed the proposed change due to concerns about the use of range codes in general. One of these commenters stated that the use of range codes in section 7A, column D would represent a loss of data. The commenter said that it would also limit information without reducing the amount of time and resources a facility would need to estimate its efficiency. The second commenter stated that it would set a bad precedent of employing range reporting and found it hard to understand how it would reduce burden since the facilities would still need to calculate the general efficiency percentage in order to determine the appropriate range to use.

Response EPA disagrees with the commenters regarding this data element. Range reporting is already used in a variety of Form R data elements and we do not believe that applying range code reporting to this data element will set any kind of precedent that would degrade the quality of TRI data. As many commenters noted, the data reported in section 7A, column D are generally based upon an estimate, rather than specific monitoring data. We believe that the range codes that have been selected for use in this data element will more accurately reflect an estimated value without sacrificing data quality.

5. Removal of section 7A, column E: Check box indicating whether waste treatment efficiency estimate is based on operating data ( 4 comments in support of proposed change / none opposed)

Summary of Comments Several commenters supported the removal of section 7A, column E, which currently requires facilities to indicate " yes" or " no" as to whether the waste treatment efficiency reported in section 7A, column D is based on operating data. Two commenters stated that if the proposed changes to section 7A, columns C and D were finalized in this rule, 31 that data in column E would not provide meaningful data to the public. Another commenter asserted that most of their treatment efficiencies are based on companyderived estimated efficiencies rather than on monitoring data. No one opposed this proposed change.

Response EPA agrees with the commenters that section 7A, column E would not provide meaningful information to the public without specific percentage estimates in section 7A, column D. Since that section of Form R will be finalized and since no commenters provided any information regarding the usefulness of such data, we have finalized the removal of this data element from Form R.

D. Substitution of section 8.11 yes/ no question with optional text box for additional information on source reduction, recycling or pollution control activities 1. Comments in support of proposed change ( 6 comments)

Summary of Comments Several commenters supported the removal of the current " yes/ no" question in section 8.11 of Form R, and the addition of an optional text box feature in EPA's TRI ME reporting software. As one commenter stated, TRI reporters have up until now been forced to submit additional information about their source reduction, recycling, and other pollution prevention techniques separately on paper, rather than electronically. Another commenter remarked that such additional information was not readily accessible in the past since it was only available on paper. One commenter stated that they had not previously submitted supplemental information and that the addition of an electronic text box would allow them to more easily submit such information.

Response EPA agrees with the commenters that the removal of the current question in section 8.11 and replacement of it with an optional electronic text box for reporting additional information about source reduction, recycling, and other pollution prevention techniques, will increase the accessibility and usefulness of such information. We also believe that it will increase the likelihood that reporters will submit such information since it will be easier to do so. EPA has finalized this section of the proposal.

2. Comments opposed to the proposed change ( 1 comment)

Summary of Comments One commenter opposed the proposed change, stating that while the proposed text box feature would be optional, many reporters would feel compelled to enter information. The commenter contended that compliance issues could arise if the information submitted was not completely accurate or precise. The commenter expressed concern that this could result in discouraging submission of such information.

Response EPA disagrees with the commenter. As stated previously, reporters have never been 32 required to include additional information in section 8.11, nor would they be required to do so under the proposed change. In fact, under the proposed change, section 8.11 would be entirely optional since those who do not wish to include additional information would no longer need to check the " no" box.

3. Proposed change would provide minimal burden reduction ( 2 comments)

Summary of Comments Two commenters supported the proposed change but contended that it would provide only negligible burden reduction.

Response EPA agrees with the commenters that this proposed change would not provide any significant burden reduction. Since section 8.11 does not require TRI reporters to include additional information, and no additional requirement would be imposed with the proposed change, because this data element is optional, EPA did not estimate any additional burden reduction for this data element in the economic analysis that accompanied the proposal.

4. Additional information should be included in section 8.10 instead of in section 8.11 ( 1 comment)

Summary of Comments One commenter supported the removal of the " yes/ no" question in section 8.11, but recommended that additional information submitted about source reduction, recycling, or pollution prevention activities be included in section 8.10 instead of in a new text box feature for section 8.11.

Response EPA appreciates receiving the recommendation to use section 8.10 rather than an additional section 8.11 for including additional information on source reduction, recycling, or pollution prevention activities. However, EPA believes it would be best to add the text box feature to section 8.11. Section 8.10 collects information required under the PPA indicating whether facilities are engaged in any source reduction activities for the chemical in question, whereas section 8.11 provides an option for reporters to include additional information about several types of activities  source reduction, recycling, and pollution control activities  not just those related to source reduction in 8.10.

5. Make the additional information available in TRI explorer and Envirofacts ( 2 comments)

Summary of Comments Two commenters supported this proposed change and added that the additional information submitted in section 8.11 should be made available through both TRI Explorer and Envirofacts. 33 Response The purpose of the proposed change is to increase availability of additional information about source reduction, recycling and pollution control activities reported optionally by TRI reporters. The Agency will make this information available through the Agency's Envirofacts database system. TRI Explorer primarily provides quantitative data on release and other waste management activities as reported by TRI facilities, and does not provide the type of facility specific data included in section 8.11.

E. Technical modifications to 40 CFR 372.85 1. Comments in support of proposed change ( 1 comment)

Summary of Comments One commenter stated that they not object to the two technical amendments concerning the 1991 rule.

Response EPA appreciates receiving the comment and has finalized this section of the rule.

2. Clarify that reporters can submit reports in various formats ( See comment for specific recommended text) ( 1 comment)

Summary of Comments EPA received one comment on this section of the proposal. The commenter expressed concern that the proposed change could be misread to imply that web based reporting is the only available reporting option. The commenter recommended that EPA modify the proposed wording of section 372.85( a) to make it clear that various allowable reporting formats ( e. g., hard copy, computer disk or tape, or web based) are available via the web site. To augment the changes in section 372.85( a), the commenter also recommended that section 372.30( a) be modified to clarify that reporting facilities have the option of reporting in several different formats, as further described in Subpart E. The commenter recommended that EPA modify section 372.30( a) in the following manner: a) For each toxic chemical known by the owner or operator to be manufactured ( including imported), processed, or otherwise used in excess of an applicable threshold quantity in section 372.25, section 372.27, or section 372.28 at its covered facility described in section 372.22 for a calendar year, the owner or operator must submit to EPA and to the State in which the facility is located a completed EPA Form R ( EPA Form 9350 1) in a format permitted by and in accordance with the instructions referred to in subpart E of this part.

Response The subject modifications should not be construed to imply that web based reporting will be the only reporting option. Web based reporting can have huge potential advantages for both respondents and the Agency, allowing respondents to receive pre populated forms and the Agency to reduce processing costs by over 90%. Nevertheless, web based reporting is not being required in recognition that there may be respondents who do not yet have suitable Internet connectivity. The modified text of 372.85( a) simply provides two sources where reporting materials will be located. EPA believes that the wording as 34 proposed does not limit the method of reporting available and therefore has finalized the change.

V. ECONOMIC ANALYSIS A. Analysis doesn't consider increased burden created by rule ( 4 comments)

Summary of Comments Several commenters contended that EPA should acknowledge and account for the initial costs of the proposal to industry. One commenter stated that EPA's economic analysis failed to consider the burden imposed by the proposed changes, and was thus flawed and incomplete. The commenter stated that much of this increased burden was tied to the need to gain familiarity with the new reporting forms and instructions. While the commenter acknowledged that the proposed changes were fairly minor, they contended that the changes would still require reporters to compare changes between the new reporting forms and the past reporting year's form. They stated that EPA's burden estimate should account for the costs associated with retraining staff and modifying internal tracking and reporting systems. In addition, according to the commenter, EPA failed to consider the burden imposed through frequent changes in the TRI reporting form.

Another commenter asserted that facilities using contractor software also incur annual maintenance charges to cover the contractor's cost of making needed changes to its software. According to the commenter, anytime EPA changes Form R, there are initial costs associated with ensuring proper communication, training and compliance with those changes.

Another commenter stated that burden would increase for those facilities that do not file RCRA Biennial Reports. They contended that reporters who are unfamiliar with the RCRA codes would have to familiarize themselves with the new codes and revise their TRI analysis accordingly. They asserted that even those familiar with the RCRA codes would have to make initial adjustments to TRI analysis mechanisms already in place.

Response The Agency acknowledges that there is a one time rule familiarization burden associated with this rule. The Agency believes that given the prior familiarity that subsequent year Form R respondents have with Form R data elements, the limited number of changes to Forms R and A, and simplicity of the changes themselves ( i. e., deleting and modifying Form R data elements), that this rule familiarization burden will be small. This small, one time burden is addressed qualitatively in the final rule. For more detailed information, see the full economic analysis that accompanies today's final rule. It is available in the Agency's regulatory docket, no. TRI 2004 0001.

The Agency disagrees with the comment that modification of company software is a burden associated with this rulemaking. Such costs and burden are not legally compelled by the rule and result from business decisions to use privately developed software rather than a legal requirement arising from today's rulemaking. 35 B. Burden estimates for the proposal are overstated ( 1 comment)

Summary of Comments One commenter stated that while they welcomed the proposed changes, their member companies estimated a minimal amount of " cost savings," on the order of approximately 5%.

Response The Agency acknowledges that individual respondents may realize different burden savings depending on the number of Form Rs filed, the baseline burden incurred, the industry the reporting facility is in, and the experience of the technical contact completing the form( s). The Agency's economic analysis is not facility specific and is based on a typical TRI reporting facility.

C. Burden estimates should not differ for PBT versus non PBT reports ( 1 comment)

Summary of Comments The commenter stated that EPA's burden analysis for this rulemaking was not appropriately derived. The commenter asserted that while there were clear and logical reasons why one might expect different burden reduction estimates for first year and subsequent year reporters, as well as for Form R versus Form A reporters, there was no reason to expect a difference between PBT and non PBT reporters. They contended that the PBT designation should not affect the changes in reporting requirements proposed in this rule. The commenter cited EPA's November 2004 " Economic Analysis of the Proposed Rule to Modify or Remove Certain Data Elements from Form A", prepared by the EPA Analytic Support Branch of OEI, indicating that these disparities are due to EPA efforts to scale " realistic burden estimates" to " OMB approved form completion times" for PBT and non PBT forms. They compared the burden estimates regarding proposed changes to the reporting forms' Latitude/ Longitude data element and stated that it was unclear why scaling of " realistic burden estimates" was necessary. The commenter concluded that the realistic burden estimate for this data element, as well as others in the proposal, appeared to equal the actual burden reduction.

Response The Agency disagrees with the commenter that the burden estimate for this rulemaking was not appropriately derived. The burden estimates used in the economic analysis for this rulemaking are consistent with differences for total subsequent year form completion and calculation burden for PBT and non PBT chemicals as set forth in the most recent ICR renewal approved by the Office of Management and Budget. Those totals were 47.1 hours for Form R/ PBT chemical, and 25.2 hours for a Form R/ non PBT chemical and are based on total estimated completion time of a Form R for each type of chemical. They were derived from surveys of TRI respondents.

The changes being finalized today, on the other hand, are specific to individual items on the form. To develop the item specific response time estimates required by this 36 rulemaking, the Agency assembled a team of experts in responding to the TRI Form who then applied their best professional judgment. This report was internally vetted through Agency TRI program personnel in the Regions and at Headquarters. The estimates are assembled and described in a July 16, 2004 memorandum entitled TRI Reporting Burden Estimates from Hilary Eustace, David Cooper, and Susan Day of Abt Associates to Paul Borst, EPA, which is contained in the docket for this rulemaking.

The burden estimates derived from the engineering analyses for PBT and non PBT chemicals are substantially lower than the current burden estimates in the Information Collection Request ( ICR) supporting statement for Form R. For example, under the current ICR, the subsequent year Form R burden estimates for PBT and non PBT chemicals for form completion and calculation are 47.1 and 25.2 hours respectively. Under the Agency's new engineering estimates, this burden is approximately 6 to 7 hours. The Agency has conducted external peer review of this engineering analysis to get independent review of the reasonableness and accuracy of the new engineering burden estimates. Those peer reviewers suggest that the six to seven hour estimate are an underestimation. Because the Agency did not have sufficient time to incorporate the external peer review of this study prior to the development of this rulemaking, scaling factors were developed for cumulative form completion times to adjust them to the estimates in the most recently approved ICR. When the peer review results have been fully incorporated, the Agency believes both total burden and burden savings will actually be reduced. However, the relative portion of burden reduction should remain unchanged. The Agency believes this approach is the best one to provide commenters a reasonable basis for assessing the consequences of today's action. The Agency also notes that the commenter does not recommend a specific adjustment to the estimated total or a revised method to determine per field burden.

D. Baseline estimates conflict with October 2003 ICR burden estimates ( 1 comment)

Summary of Comments One commenter expressed concerns about the lack of clarity surrounding the proposal's burden estimates. The commenter asserted that EPA does not provide clear, understandable baseline estimates of burden hours in the proposed rule. They cited a statement made by an EPA employee at EPA's TRI Burden Reduction Stakeholder Meeting in October 2004. According to the commenter, the EPA employee stated publicly at the meeting that EPA was using a 2002 baseline burden of approximately 4.1 million hours for its baseline estimates, but reported significantly different burden estimates in its TRI reporting forms Information Collection Requests ( ICRs) published in the Federal Register on October 31, 2003. In those ICR burden estimates, according to the commenter, EPA reported a significant increase in burden reduction due to the increased use of the Agency's TRI ME reporting software. The commenter questioned why EPA is considering making massive additional changes to TRI reporting in a subsequent burden reduction rule when the Agency just posted significant reductions in 2003. The commenter contended that it would be irresponsible and misleading for EPA to use baseline burden numbers for this rulemaking that did not take into account the reductions reported in the October 2003 ICR burden estimates. The commenter went on 37 to state that if the Agency has already adjusted for the reduced burden estimates it documented in the ICR documents, then the agency should explain its rational for pursuing additional drastic burden reduction measures after achieving the significant reductions documented in the 2003 ICR. In addition, they stated that EPA should fully disclose all of its burden estimates for the past several years.

Response The Agency agrees that the burden totals used in its economic analysis do not match the burden estimates in the October 2003 ICR supporting statement published in the Federal Register. The burden estimates in the ICR supporting statement did not receive final OMB approval. This rule's baseline burden estimates, upon which the economic analysis relied, represent the final OMB approved respondent burden estimate. Further information on past burden estimates may be found by examining the docket for past ICR renewals.

As stated in the preamble of today's action, EPA is committed to making TRI reporting as burden free as possible without sacrificing data quality. We believe that this rule builds upon the Agency's previous burden reduction efforts related to the TRI ME reporting process, and it provides important additional reporting burden relief measures.

Information is available about all of EPA's recent ICR documents at http:// www. epa. gov/ edocket. To access information about the Agency's most recent TRI reporting forms ICR renewal ( No. 1363 14 OMB Control No. 2070 0093), click on " Quick Search" on the side bar and enter " OEI 2004 0006" on the search line.

VI. ADDITIONAL BURDEN REDUCTION ALTERNATIVES THAT SHOULD BE CONSIDERED A. Requests for changes to Forms R and A that were not proposed 1. Evaluate non statutorily required data elements in Form R ( 1 comment)

Summary of Comments One commenter stated that they identified thirteen non statutorily required data elements on Form R in a previously released burden reduction options paper. The commenter requested that EPA evaluate whether those non statutory data elements are necessary for an effective TRI database and then to evaluate what steps could be taken to ease the burden of collecting such data. The commenter asserted that any non statutory data elements that have not contributed significantly to how the TRI data has been used should be eliminated unless there is a cost/ benefit analysis that demonstrates that their continued collection is clearly justified.

Response In response to this commenter's previously submitted comments, EPA conducted an evaluation of all TRI reporting form data elements as part of the development of options to proposed for this rulemaking. This evaluation determined that elements that were not included in this rulemaking were either statutorily required or contributed significantly to how the TRI data has been used. 38 2. EPA should provide information about its review of listed toxic chemicals ( 2 comments)

Summary of Comments Two commenters requested that EPA supply information about an Agency review of the TRI list of toxic chemicals and all appropriate statutory requirements. One commenter stated that it was not clear whether such a review had been completed, and that in the meantime, it appeared that EPA had taken the position that no chemical should be removed from the list until the entire review was completed. The commenter further stated that completion of the review might avoid the need to employ a threshold listing of section 313 chemicals. The commenter recommended that EPA complete the review quickly and remove those chemicals " for which reviews against the statutory criteria have been completed, and accelerate its review of the remaining chemicals." Another commenter stated that EPA had cited the review of TRI chemicals at the Agency's October 19, 2004 TRI Burden Reduction Stakeholder meeting, and the Agency had stated that all chemicals evaluated prior to the meeting had met the criteria for listing. The commenter requested that EPA provide more information about this effort, including " how EPA made this evaluation and what chemicals were evaluated."

Response EPA conducted an initial screening level evaluation of the original list of chemicals and did not identify any chemicals to remove from the list. EPA has not made more indepth evaluation a priority because it would not likely result in substantial burden reduction for the reporting community. Instead of continuing with this extremely resource intensive task, EPA is focusing its resources on identifying other more promising opportunities for burden reduction, such as this rule, without compromising the utility of the data.

3. Additional changes to section 7 a. Remove section 7 ( 2 comments)

Summary of Comments Two commenters stated their support for removing Part II, section 7 entirely. One commenter asserted that this was justified since section 7 is one of the most time consuming parts of the form to complete, and according to the commenter, it has no apparent use. The second commenter expressed support for removing this data element if EPA determined that these data elements are not widely used, or do not provide meaningful data.

Response The Agency disagrees with the commenters. Even within the Agency, a number of program offices utilize information in section 7 to prepare analyses in support of their statutorily mandated activities ( e. g., previously mentioned biennial report under 304b of the Clean Water Act) and in prioritizing Government Performance and Results Act ( GPRA) and related activities. In addition, section 313( g)( 1)( C)( iii) of EPCRA requires 39 TRI reporting forms to collect information "[ f] or each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such methods for that wastestream." 42 U. S. C. 11023( g)( 1)( C)( iii).

b. Confusion regarding the relationship between sections 7A and 8.6 ( 3 comments)

Summary of Comments Three commenters expressed concerns about the relationship between sections 7A and section 8.6 of Form R, Part II. One commenter asserted that the difference in how treatment efficiencies are calculated in section 7A for individual waste streams and how the total quantity treated on site in section 8.6 is calculated is a continuing source of confusion. The commenter cited an example in which complete transfer of a chemical from an air waste stream to a liquid waste stream would be reported as 100% treatment efficiency in section 7A for the air waste stream. However, according to the commenter, unless the liquid waste stream is treated such that the chemical is actually destroyed, the quantity treated in section 8.6 would be zero. The commenter contended that the section 8.6 data in the example is more relevant from an environmental viewpoint and the conflicting section 7A treatment efficiency data only adds confusion. They asserted that allowing ranges to be reported in section 7A for treatment efficiencies would not change this situation. They concluded that EPA should either make the two sections consistent or eliminate the treatment efficiency portion of section 7A.

Another commenter suggested that section 7A, column D be renamed " waste removal efficiency", instead of " waste treatment efficiency" in order to clarify that section 7A is focused on waste removal, to distinguish it from section 8.6, and to create a clear link between the TRI instructions booklet and Form R.

A third commenter recommended that EPA provide clearer guidance on the subtle distinction between the types of treatment reported in sections 7A and 8.6. The commenter asserted that this is a continuing source of confusion for TRI reporters and that this rulemaking provided EPA with an opportunity to improve reporting quality through additional guidance. They contended that section 7A addresses all types of treatment ( chemical; physical and biological) without regard to whether the treatment ultimately results in the " destruction" of the TRI chemical, and that TRI reporters often equate treatment in section 7A with the need to report these quantities in section 8.6. The commenter stated that EPA needs to do a better job of explaining the important differences between these two sections of Form R and recommended that EPA include examples in guidance and instructions of exactly how these " treatment" terms differ.

Response These comments are outside the scope of this rulemaking. However, information is available describing how the term, " treatment" should be used in both sections 7A and 8.6 in EPA's annual TRI Reporting Forms and Instructions booklet. See page 53 of the 2004 booklet, under ( d) of the unit on section 7A, and page 62 for the unit on sections 8.6 and 8.7. 40 c. Reporting treatment methods that have no effect on the TRI chemical ( 1 comment)

Summary of Comments One commenter stated that EPA needs to address the reporting of waste treatment methods that have no effect on the chemical in a particular waste stream. The commenter asserted that this is one of the major flaws in section 7A, and while making other changes to section 7A would be helpful, they will do little to relieve burden unless this issue is addressed. The commenter provided the following example to illustrate the problem: if the flue gas from a solid fuel boiler is sent through mechanical collectors and an electrostatic precipitator to remove fly ash, these devices have no effect on a gaseous chemical such as formaldehyde. According to the commenter, in this case there would be no discernable value to report a zero amount of treatment efficiency for an air waste stream in section 7A. The commenter contended that the data in section 7A would be of even less value if the current waste treatment methods in section 7A, column B were replaced with the RCRA treatment codes, since the RCRA code for particulate control devices such as electrostatic precipitators and mechanical collectors would be H129 (" other treatment"). According to the commenter, in such a case, it would not be apparent why the " treatment" failed to result in no removal.

Response Section 313( g)( 1)( C)( iii) of EPCRA requires TRI reporting forms to collect information "[ f] or each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such methods for that wastestream." 42 U. S. C. 11023( g)( 1)( C)( iii). EPA has interpreted that requirement to apply even if a chemical goes through a treatment process with no effect. As stated in the 2004 TRI Reporting Forms and Instructions booklet, " an efficiency of zero must be reported for any waste treatment method( s) that does not destroy chemically convert or physically remove the EPCRA section 313 chemical from the waste stream." EPA believes that this requirement is useful to identify chemicals that are not being treated, and to identify facilities that could make improvements to their waste treatment efficiency processes.

In addition, this rule retains the TRI treatment codes for air emissions. Particulate control devices such as electrostatic precipitators and mechanical collectors will continue to be reported under the same codes they have been reported under in the past.

4. Changes to section 8 a. Allow Range reporting for section 8 ( 1 comment)

Summary of Comments One commenter asserted that in order to achieve consistency, EPA should harmonize its range reporting. Thus, if range reporting is used in part II, sections 5 and 6 of Form R, the commenter stated that it should also be used in section 8. The commenter further contended that there is currently no benefit to using range reporting in sections 5 and 6, because reporters must still use specific numbers in section 8. 41 Response This comment is outside the scope of this rulemaking. As explained in both the proposal and final version of this rule, EPA expects to propose a more extensive burden reduction rule this fall. The commenter will have the opportunity to comment on range reporting in section 8 in response to the upcoming proposal.

B. Other burden reduction related comments 1. Impact of TRI program upon small businesses ( 5 comments)

Summary of Comments A number of comments were received relating to the magnitude of TRI burden on small businesses, the value of such information, and requesting the consideration of additional opportunities for burden relief.

Response EPA is especially concerned about the reporting burdens placed upon small businesses. However, these comments are outside the scope of this rulemaking. As explained in both the proposal and final version of this rule, EPA expects to propose a more extensive burden reduction rule this fall. The commenters will have the opportunity to comment on this upcoming proposal.

2. Increase reporting thresholds a. Increase reporting thresholds for certain classes of chemicals or facilities with low reported releases ( 7 comments)

Summary of Comments Seven commenters expressed support for establishing a higher threshold for a category of facilities or a class of chemicals with small reportable amounts. Many of the commenters asserted that this was one of several more valuable burden reduction approaches that should be addressed in the Agency's forthcoming more expansive TRI burden reduction rule. Several of the commenters cited discussions during EPA's TRI Burden Reduction Stakeholder Dialogue between November 2002 and February 2004, in which this topic was raised. Many of the commenters also mentioned that they had submitted comments regarding this issue. One commenter cited petroleum bulk stations in particular as deserving a close examination in order to determine if they should be excluded entirely, should have higher reporting threshold or limited reporting requirements for only those terminals with more than 20 full time employees. ( See also the section of this Response to Comments document titled, " Increase reporting threshold for petroleum bulk stations and terminals".)

Response These comments are outside the scope of this rulemaking. As explained in both the proposal and final version of this rule, EPA expects to propose a more extensive burden reduction rule this fall. The commenters will have the opportunity to comment on this upcoming proposal. 42 b. Increase threshold for facilities that do not have large releases or waste management quantities by raising the threshold for manufacture, process and otherwise use ( 1 comment)

Summary of Comments One commenter recommended that EPA should consider exempting facilities that have had zero/ low releases for a given period of time and no significant manufacture, process and otherwise use ( MPOU) changes within the last year ( based on process knowledge). According to the commenter, this approach would have the effect of exempting particular facilities from a TRI reporting obligation until such time as MPOU changes create the potential for meeting the reporting threshold.

Response This comment is outside the scope of this rulemaking. As explained in both the proposal and final version of this rule, EPA expects to propose a more extensive burden reduction rule this fall. The commenter will have the opportunity to comment on this upcoming proposal.

c. Increase reporting threshold for small businesses ( 2 comments)

Summary of Comments Two commenters expressed support for increasing the reporting thresholds for small businesses. One of the commenters stated that small facilities in general need relief, whether or not they are part of a larger parent company. The commenter said that EPA may be under the impression that small facilities in larger parent companies do not have the responsibility for data collection and analysis. The commenter elaborated by saying that even small facilities in larger organizations must use their own limited resources to collect data and report under the TRI program   and it is in data collection and assessment that the greater part of the TRI burden lies. Moreover, according to the commenter, facilities otherwise qualified as small businesses can nevertheless have significant releases or other waste management quantities compared to facilities belonging to large companies. The commenter asserted that this and other burden reduction approaches should be targeted at the facilities that do not make a significant contribution to reported TRI releases.

Response These comments are outside the scope of this rulemaking. As explained in both the proposal and final version of this rule, EPA expects to propose a more extensive burden reduction rule this fall. The commenters will have the opportunity to comment on this upcoming proposal.

3. Lower reporting threshold ( 1 comment)

Summary of Comments 43 One commenter stated that " one millions pounds is alot of poison and full reporting should and must take place. 500 lbs. should be lowered to 50 lbs."

Response This comment is outside the scope of this rulemaking. As explained in both the proposal and final version of this rule, EPA expects to propose a more extensive burden reduction rule this fall. The commenter will have the opportunity to comment on this upcoming proposal.

VII. GENERAL COMMENTS RELATED TO ADDITIONAL TRI BURDEN REDUCTION ( 24 comments)

Summary of Comments A number of comments were received relating to additional changes to Forms R and A, as well as how the Agency should structure a No Significant Change ( NSC) burden reduction option, one for zero releasers, or other items brought up during the October 2004 and earlier TRI burden reduction stakeholder dialogues.

Response These comments are outside the scope of this rulemaking. As explained in both the proposal and final version of this rule, EPA expects to propose a more extensive burden reduction rule this fall. The commenters will have the opportunity to comment on this upcoming proposal.

VIII. COMMENTS UNRELATED TO BURDEN REDUCTION ( 7 comments)

Summary of Comments and Response Comments were also received relating to the timeliness of the TRI data release, the need to improve the context of TRI data, and other general concerns with current implementation of the TRI program. These comments are outside the scope of the rulemaking.