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

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

For several reasons, in this final rule EPA has decided to include
section 8.8 quantities (i.e., quantities resulting from remedial
actions, catastrophic events, or one-time events not associated with
production processes) in the ARA threshold determination for non-PBT
Form A eligibility.

First, EPA agrees with many of the commenters that while section 8.8
releases and other waste management amounts are not the direct result of
production-related activities, and therefore, are less amenable to
source-reduction efforts, reporting on section 8.8 quantities provides
important information on releases and other waste-management amounts in
the same way reporting on production-related releases and other
waste-management amounts informs communities.

Second, the ARA for non-PBT chemicals should include section 8.8
waste-management information in order to create consistency between PBT
and non-PBT Form A eligibility.  In other words, including the
waste-management information of section 8.8 in the Form A threshold
determination for PBT chemicals, as proposed, and not in the ARA for
non-PBT chemicals will add unnecessary complications and complexities in
determining Form A eligibility.

Third, EPA does not expect the inclusion of section 8.8 quantities in
the Form A threshold determination for non-PBT chemicals to add a
significant amount of burden to those facilities considering Form A.
Less than 4% of all non-PBT chemical Form Rs have a value greater than
zero in section 8.8.  Accordingly, section 8.8 quantities will not play
any role in most Form A eligibility determinations.  Further, because
section 8.8 is restricted to quantities involving remedial actions,
catastrophic events, or one-time events not associated with production
processes, EPA does not expect section 8.8 quantities to factor into any
facility's Form A eligibility determinations on a consistent, annual
basis.

With regard to commenter’s concerns about states losing funding for
their pollution prevention programs because of the proposed expanded
eligibility for Form A, EPA notes that the TRI program (EPCRA section
313) does not govern state fee programs.  States have the ability to
reassess how they collect fees to fund their pollution prevention
activities and other environmental programs.

f. Smaller releases not necessarily less risk

Summary of Comments (by Abt):

Eighteen unique submissions representing 22 commenters expressed general
opposition to the proposed option for non-PBT chemicals, because the
smaller releases that will not be reported do not necessarily pose less
risk than the larger releases that will continue to be reported.  Many
commenters wrote about the potential for multiple small emitters to be
concentrated in a community, resulting in a substantial cumulative risk,
which would not be reported.  The National Environmental Trust, and
others, wrote that EPA’s Risk Screening for Environmental Indicators
(RSEI) program is built in large part on the very premise that a small
amount of releases of a more toxic or hazardous chemical can be more
dangerous than a larger release of a less toxic substance.  Several
commenters said that the proposed rule is advocating a
‘one-size-fits-all’ approach that ignores the wide variability in
toxicity across TRI chemicals.  Any changes to the thresholds must take
these differences into account.

The Washington State Department of Ecology wrote that the department
emphasizes working with facilities based on the risk their wastes and
releases pose to the environment.  If a 5000-pound threshold is enacted
for the use of Form A, toxics reduction staff would lose information
from facilities that might have small, but more toxic, releases.  This
would make it much harder to target this program to those facilities
that pose the greatest risk and who could benefit greatly.

The New Jersey Department of Environmental Protection (“NJDEP”)
wrote that an analysis of the New Jersey Release and Pollution
Prevention Report (RPPR) data was conducted to identify facilities based
on relative risk.  This analysis was intended to identify facilities
that pose potential adverse public health impacts.  Two of the
facilities identified, Karnak Corporation, Clark, New Jersey and Gardner
Asphalt, Kearny, New Jersey both reported air releases of asbestos
between 2 and 2,540 pounds from 1993 to 2002.  The resulting
investigation revealed that even the 2 pounds of air releases resulted
in a significant potential risk to the surrounding community.  NJDEP was
successful in assisting these facilities in substituting cellulose for
over two million pounds of asbestos, resulting in reduced exposure of a
carcinogen to workers and the surrounding community.  And most
importantly, the asbestos is no longer in the consumer products.  Had
this proposal been in effect in 2002, the NJDEP, and more importantly,
the surrounding community, would not have been aware of this significant
health risk.

The Group Against Smog & Pollution, Inc wrote that one cannot safely say
that a TRI non-PBT chemical in amounts under 5000 pounds at a facility
or group of facilities in a neighborhood would have less than a one in a
million risk of public health injury since there is no real risk
assessment done.  In ranking companies by risk using the EPA Risk Screen
Indicators Model under the "Toxics Release Inventory Burden Reduction
Proposed Rule,” Washington state would lose data on eight of the top
forty facilities with the greatest relative risk.

Law Environmental, Inc. described an analysis also using EPA's RSEI
model, which found that many releases in Alabama under 5,000 pounds are
more hazardous to the public than higher-quantity releases.  For
example, the Meadowcraft, Inc. facility releases only 1,141 pounds of
toxic chemicals and would not, under the proposed rule, be required to
file a Form R.  Yet, its release is more toxic to more people than
Sanders Lead Co., Inc. which releases 11,316,725 pounds of toxic
chemicals and which would be required to file a Form R.  This example is
repeated many times in the Alabama data and surely is repeated many
times in the national data.  Relying solely on pounds of toxic chemicals
released or managed as a criterion for judging risk or public interest
is arbitrary.  Risk is a function of quantity, toxicity and exposure.

Response:

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

The volume of release information that may no longer be reported on Form
R as a result of this final rule is expected to be much less than the
Form R release information at stake under the proposal.  Specifically,
EPA estimated that at full utilization of Form A, approximately 14
million pounds of release information would no longer be reported on
Form R as a result of the proposal.  As a result of this final rule,
however, EPA estimates the additional amount of release pounds that may
no longer be reported on Form R at full utilization of Form A to be
approximately 5.7 million pounds, which is approximately only 40% of the
release information at issue under the proposal.

EPA further notes that while Form A does not provide the level of
detailed information provided by Form R, it does provide data users with
valuable information.  Under today’s rule Form A informs the public
that total releases is in the range of zero to 2,000 pounds and that
total waste management is in the range of zero to 5,000 pounds.
Furthermore, TRI data users are currently able to access Form A facility
information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities.
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.

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

iii. Lessens incentive for companies to improve environmental
performance

Summary of Comments (by Abt):

Six commenters expressed general opposition to the proposed option for
non-PBT chemicals, because the proposal will lessen the incentives for
companies to improve their environmental performance.  Facilities will
be able to release up to ten times more chemicals without any reporting.
 One commenter wrote that it is outrageous that EPA would want to make
it easier for businesses to avoid public scrutiny of their releases.  It
has been unequivocally documented that having to publish releases has
shamed businesses into drastically reducing their output.

The New York State Department of Environmental Conservation wrote that
EPA fails to describe how an increase in the annual reportable amount
will be a pollution prevention incentive.  Such a change is more likely
to be a pollution prevention disincentive.  For example, a facility may
have implemented measures to maintain an annual reportable amount of 500
pounds or less for a chemical and if the proposed rule is promulgated,
the facility may find the cost of such measures to be excessive and
abandon them resulting in increased releases of the chemical to various
media.

The South Carolina Department of Health & Environmental Control wrote
that with the application of the 5000-pound threshold for non-PBT
chemicals, 252 South Carolina facilities will no longer be inclined to
explore waste or release reduction for the 643 chemical reports exempted
from Form R.

Several State Attorneys General wrote that the proposed change would
also remove a powerful incentive to minimize the release of toxic
chemicals, as companies that previously kept their releases to less than
500 pounds to avoid detailed reporting could now release much greater
amounts without reporting those amounts.  EPA has not evaluated, but
should evaluate, the extent to which the proposed changes to the rule
will weaken incentives for companies to reduce releases and use of toxic
chemicals.  As noted in Part III.A [see comment in outline topic XII.6]
above, TRI reporting requirements have induced companies to reduce their
releases and use of toxic chemicals by billions of pounds, but the
proposed rule would weaken that incentive by allowing less reporting.
For example, companies that previously kept their non-PBT releases to
less than 500 pounds to avoid detailed reporting could now release up to
5000 pounds without reporting those amounts.

Response:

In response to concerns that the proposed rule would lessen the
incentives for companies to improve their environmental performance
especially because the proposal allows 5,000 pounds of releases to
qualify for Form A, EPA has decided to modify the proposal by limiting
releases to 2,000 pounds.  EPA believes that this modification to the
proposal will act as an incentive for pollution prevention and
improvements in environmental performance.

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

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

By raising the recycling, treatment, and energy recovery portions of the
ARA to a 5,000-pound maximum, EPA has built into the Form A eligibility
criteria an incentive for facilities to move away from disposal and
other releases toward treatment and recycling.  Further, by including
all waste management activities in the Form A eligibility criteria EPA
is encouraging facilities above the 5,000-pound ARA to reduce their
total waste management in order to qualify for Form A.

iv. Minimal burden reduction

Summary of Comments (by Abt):

Three commenters expressed general opposition to the proposed option for
non-PBT chemicals.  The commenters wrote that the benefits to industry
would be small, and not worth the decrease in data available to the
public.

The Natural Resources Defense Council wrote that current recordkeeping
requirements would remain unchanged under the proposed rule.  This is
necessary, since complete and accurate records are needed for facilities
to calculate their releases and determine their eligibility for Form A.
However, this also limits the burden reduction that might be expected
from the rule change.  The expected cost savings projected by EPA (using
current methodology) for facilities that abandon Form R filings in favor
of Form A for non-PBT chemicals amount to $430 per form or $812 per
facility, on average. Such small cost savings do not justify the large
data losses that would be incurred.

James Jeffords and five other US Senators wrote that EPA's proposal
would allow thousands of facilities to withhold details about pollution
volumes, waste management and treatment.  In addition, since facilities
under this proposal will still need to calculate the volume of their
toxic releases, it is unclear how allowing use of the shortened
reporting form will result in any meaningful cost savings.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, and WI wrote that EPA itself estimates that allowing use of Form A
would only save an estimated 9.6 hours per form. As noted elsewhere in
their comments [see comments in outline topics II.1.D, VIII.1, VIII.1.A,
VIII.1.C, and VIII.7.A], even this small amount of time is likely to be
an overestimate.

Response:

For all facilities taking advantage of Form A for a non-PBT chemical,
the Agency estimates the burden savings to be 9.1 hours for each Form A
completed in lieu of a Form R.  For a detailed breakdown of the savings
per Form R, readers should refer to the economic analysis accompanying
the rule.  While this burden savings may not represent a significant
savings for all facilities eligible for Form A under the proposal, EPA
disagrees with commenters that the proposed rule represents minimal
burden reduction for all sectors expected to qualify for Form A.  EPA
acknowledges that facilities with releases and other waste management
amounts well below the threshold for Form A may be spared the burden of
detailed calculations to determine eligibility for Form A.  EPA further
allows for the possibility that Form A may amount to significant burden
reduction for small facilities.

However, in addition to considering burden reduction, EPA has carefully
considered the concerns raised about the impact the proposal could have
on the utility of the data.  Commenters opposed to the proposed
5,000-pound ARA contend that it is at the local level that a 5,000-pound
Form A range of waste management information, and in particular, release
information, will adversely impact the ability to perform trend
analyses, monitor the performance of individual facilities, and more
generally, meet the intended purpose of the data collection to inform
the public, government, and other data users about releases of toxic
chemicals to the environment.

Accordingly, EPA has decided to modify the proposed 5,000-pound ARA by
placing a 2,000-pound limit on releases of non-PBT chemicals that are
considered for Form A.  By placing a 2,000-pound limit on the amount of
releases that may be applied to the 5,000-pound ARA for Form A
eligibility, this rule preserves almost 60% of the total release pounds
that would no longer be reported on Form R under the proposed rule at
full utilization of Form A and at the same time, this rule preserves
almost 80% of the burden reduction offered by the non-PBT portion of the
proposed rule.  EPA believes that this final rule approach to expanded
Form A eligibility for non-PBT chemicals strikes a better balance than
the proposed rule insofar as providing meaningful burden relief while at
the same time providing valuable information to the public consistent
with the goals and statutory purposes of the TRI program.

v. Sets a poor precedent

Summary of Comments (by Abt):

Five unique submissions representing sixteen commenters expressed
general opposition to the proposed option for non-PBT chemicals, because
the rule may set a poor precedent for other US programs, or for other
countries.  One commenter wrote that the proposal generally sends the
message that EPA is willing to sacrifice the public health in order to
provide relief to companies with irresponsible waste management
practices.  The National Environmental Trust, New Hampshire chapter,
wrote that this proposal will likely influence policies for current and
future polluting industries in the wrong direction for protecting public
health.  The National Environmental Trust (national group) wrote that
the EPA Administrator also has signed at least two CEC [North American
Commission for Environmental Cooperation] resolutions promoting greater
data comparability among North American countries, so this proposal
represents a retreat from those formal commitments.

Response:

EPA has carefully considered commenters’ concerns that the proposed
rule would set a poor precedent for protecting public health, and would
sent the wrong message to other U.S. environmental programs,
international efforts promoting data comparability, and companies
looking to improve their environmental performance.  In response to
these concerns and other concerns raised in opposition to the proposal,
EPA has decided to modify the proposed 5,000-pound ARA by placing a
2,000-pound limit on releases of non-PBT chemicals being considered for
Form A.  By placing a 2,000-pound limit on the amount of releases that
may be applied to the 5,000-pound ARA for Form A eligibility, this rule
preserves almost 60% of the total release pounds that would no longer be
reported on Form R under the proposed rule at full utilization of Form A
and at the same time, this rule preserves almost 80% of the burden
reduction offered by the non-PBT portion of the proposed rule.  EPA
believes that this final rule approach to expanded Form A eligibility
for non-PBT chemicals strikes a better balance than the proposed rule
insofar as providing meaningful burden relief while at the same time
providing valuable information to all TRI stakeholders.

vi. Smaller facilities are not as efficient in their waste
management/release a higher percentage of their PRW

Summary of Comments (by Abt):

Nine commenters expressed general opposition to the proposed option for
non-PBT chemicals because proportionally more data from smaller
facilities may be lost, and smaller facilities are not as efficient in
waste management as larger facilities.

Environmental Defense wrote that small facilities tend to have a
relatively high percent of production-related waste that is released to
the environment, suggesting that they are not doing enough to prevent
releases.  Moreover, small facilities often operate with little
oversight from environmental inspectors. Their only motivation for
pollution prevention may come from scrutiny of the local press and
community groups.

Similarly, the National Environmental Trust (NET) wrote that there is
plenty of evidence showing that "small" facilities producing less than
5,000 pounds of production related waste do not necessarily operate
efficiently, and exempting these facilities will hinder efforts to
promote pollution prevention and could lead to non-reporting of
significant releases.  According to NET:

1) Small facilities tend to have a larger percentage of their
production-related waste as releases to the environment than larger
facilities.  Releases constitute 15% of production-related waste
nationwide.  However, releases constitute 80% of production-related
waste for facilities that would no longer report numerical data under
the certification statement proposal.  These facilities are not
practicing pollution prevention and are not even managing waste either
on- or off-site.  They clearly need more scrutiny, not less.

2) According to the North American Commission for Environmental
Cooperation (CEC), which analyzed data from TRI and its Canadian
counterpart, the annual reduction in releases to the environment is
entirely driven by large facilities, and masks continuous increases in
releases from smaller facilities.  Raising the certification statement
threshold will potentially allow for even greater increases that will
not have to be reported by facilities that are under the threshold,
particularly since the vast majority of their production-related waste
is released to the environment.

Several state agencies and environmental groups also wrote to provide
statistics for their own states regarding the production-related
waste/total releases ratio for all facilities compared to that for small
facilities:

MN:  statewide: 7%, small facilities: 40%.

ME:  statewide: 8%, small facilities: 43%.

DE:  statewide: 11%, small facilities: 45%.

PA:  statewide: 10%, small facilities: 55%.

SD:  statewide: 51%, small facilities: 64%.

NH:  statewide: 23%, small facilities: 65%.

CA:  statewide: 10%, small facilities: 77%.

Response:

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

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

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

By raising the recycling, treatment, and energy recovery portions of the
ARA to a 5,000-pound maximum, while capping releases at 2,000 pounds,
EPA has built into the Form A eligibility criteria an incentive for
facilities to move away from disposal and other releases toward
treatment and recycling.  Structuring the Form A eligibility criteria in
a way that promotes recycling and treatment over disposal and other
releases provides an incentive that addresses commenters' concerns about
smaller facilities with proportionally greater releases than larger
facilities.

vii. Other

Summary of Comments (by Abt):

Three commenters expressed general opposition to the proposed option for
non-PBT chemicals for other reasons not specified above.

The New Jersey Department of Environmental Protection wrote that nearly
10 percent of the New Jersey facilities submitting a Form A for 2004
either used more than 1,000,000 pounds of the toxic substance or
generated more than 500 pounds of production-related waste of the toxic
substance and, therefore, should not have utilized the Form A.  New
Jersey works very closely with USEPA's Region 2 office to uncover and
correct these areas of non-compliance.  The proposal would roll back
those efforts, and accept many of those abuses of Form A.  [For details,
see p. 9, Document ID 2235.2]

The National Environmental Trust wrote that the potential loss of data
described above is particularly distressing since the Agency has
resisted attempts to raise the quality of Section 8 data used to
calculate production-related waste, both with simple quality control
checks and providing definitions for reporting elements.  Not only are
there significant discrepancies between Section 8 and Sections 5 and 6
on individual forms - often reporting zero on the relevant lines of
Section 8 when there are appropriate data reported in the other sections
- but the on-site waste management terms used in Section 8 are
undefined.  This leads to substantial changes in Section 8 quantities
from year to year, particularly for on-site recycling.  It is all too
easy for a facility to consider on-site recycling as "integral to and
necessary for" the process as stated in the Pollution Prevention Act,
even if there is no "hard-piped" recycling going on and consequently
report no on-site recycling.  On principle, EPA should not even be
considering raising the certification statement threshold until it fixes
the Section 8 data quality problems.

Another commenter wrote that this proposal will create an incentive for
companies to scatter small facilities that release 4,999 lbs/year.

Response:

Based on a range of concerns raised about the potential loss of detailed
Form R information on waste management and in particular, detailed
information about releases, EPA has decided to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By limiting the release portion
of the 5,000-pound ARA to 2,000 pounds, EPA is structuring the Form A
eligibility criteria in a way that promotes treatment and recycling over
releases, an approach that is consistent with national policy as
provided for by the Pollution Prevention Act.

EPA understands commenters' concerns about data quality and
inconsistencies in defining specific waste management activities such as
"recycling."  To date, EPA has provided various forms of compliance
assistance (e.g., guidance, training sessions, a call center, a TRI
website, reporting software) to improve data quality and to promote
consistent TRI reporting.  Recognizing that there still is room for
improvement, the Agency intends to continue its outreach efforts to
improve reporting compliance.  Nevertheless, EPA believes that this
final rule's approach to expanded Form A eligibility for non-PBT
chemicals appropriately balances meaningful burden relief against the
requirement to provide the public and other data users with information
that is consistent with the goals and statutory purposes of the TRI
program.

i. Approach to defining Annual Reportable Amount (ARA)

Summary of Comments:

The commenter is in favor of changing the definition of "annual
reportable amount" to exclude materials that are reclaimed and recycled.
 The commenter contends that such an approach would provide an incentive
for pollution prevention activities.

Response:

EPA disagrees with the commenter that recycling and waste management
activities other than releases should be excluded from the ARA threshold
for Form A eligibility.  Contrary to the commenter's assertion, EPA
believes that by including recycling, treatment, and energy recovery as
well as releases in the 5,000-pound ARA, EPA is promoting pollution
prevention.

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

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

Second, by including all waste management activities in the Form A
eligibility criteria EPA is encouraging facilities above the 5,000-pound
ARA to reduce their total waste management in order to qualify for Form
A.  If the Agency were to completely remove recycling, treatment, and
energy recovery activities from the ARA determination, as the commenter
advocates, EPA would be structuring Form A eligibility in a way that
lacks the incentive for facilities to engage in source reduction.
Instead, for Form A eligibility facilities would only need to convert
release quantities above the Form A eligibility threshold to some other
waste management activity such as recycling and not reduce waste
altogether.  National policy states that pollution should be prevented
or reduced at the source whenever feasible.  Accordingly, the Agency has
decided to include all waste management activities under the Form A
threshold determination in order to ensure that Form A promotes source
reduction.

a. ARA should be modified to include Section 8.8

Summary of Comments (by Abt):

Nine commenters wrote that the ARA should be modified to include Section
8.8.  Several commenters wrote that one-time or periodic activities, or
accidental releases, can result in substantial releases to the
environment.  Although the section 8.8 release amounts are not direct
results of production activities, these releases are still generated as
a result of the facility doing business manufacturing, processing or
otherwise using the TRI-listed chemical, and so should be included in
the ARA.  The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH,
NJ, NM, VT, and WI wrote that including Section 8.8 in the ARA (for all
non-production related releases of any sort) would be a good idea even
if the proposed rule is rejected.

Environmental Integrity wrote that a review of online data from the
Texas Commission on Environmental Quality shows that petrochemical
plants and other manufacturers frequently release large amounts of
pollution when equipment malfunctions, and that these accidental
emissions can sometimes be greater than emissions from routine
operations.  The proposed exclusion could encourage companies to
reclassify accidental releases as "catastrophic" to take advantage of
the exemption and avoid having to file TRI Form R reports.  A
catastrophic release may result from negligence or the failure to invest
in the necessary pollution control equipment.  The TRI is one of the
primary sources of public information for those who want to track
environmental performance, and it is inappropriate to exclude data that
may reflect poor management practices.  EPA has offered no justification
for this exclusion.  If catastrophic events are rare, as EPA may be
assuming, then shielding them from disclosure would not yield any
appreciable reduction in paperwork, which is EPA's main justification
for its proposal.  If they are frequent or significant, however, then
there is really no rationale for excluding them from disclosure under
Form R.

American Petroleum Institute API wrote to support EPA modifying the ARA
(for non-PBTs) to include Section 8.8 management information.  Including
the management information of Section 8.8 in the ARA for PBT chemicals
and not in the ARA for non-PBT chemicals will add unnecessary
complications and complexities in determining Form A eligibility.

Commenters supplied the following examples of releases that would not
have been reported under the proposed threshold if Section 8.8 is
excluded from the ARA:

-according to the 2003 TRI data, 124 facilities would not have to report
non-production releases of 1,000 pounds or more; for 10 of those
facilities, the amount is more than 100,000 pounds.

-the Union Carbide release in Bhopal- if it were located in the US and
the rest of its activities were small enough to meet the 5,000-pound
Form A threshold it wouldn’t have had to report its 40-ton release.

- Conoco-Phillips reported catastrophic releases of 8,000 pounds of
trimethylbenzene in 1998, and more than 5,000 pounds of dichloroethane
in 2000 at its refinery in Lake Charles, Louisiana, and 36,600 pounds of
hydrochloric acid from its refinery in Borger, Texas in 2000.

-the Timken Sandy Creek Distribution Center's non-production release of
292,420 pounds of manganese.

-the Ellwood National Forge's non-production release of 176,700 pounds
of ammonia.

-Penn Color's non-production release of 40,498 pounds of several
different chemicals.

Response:

For several reasons, in this final rule EPA has decided to include
section 8.8 quantities (i.e., quantities resulting from remedial
actions, catastrophic events, or one-time events not associated with
production processes) in the ARA threshold determination for non-PBT
Form A eligibility.

First, EPA agrees with many of the commenters that while section 8.8
releases and other waste-management amounts are not the direct result of
production-related activities, and therefore, are less amenable to
source-reduction efforts, reporting on section 8.8 quantities provides
important information on releases and other waste-management amounts in
the same way reporting on production-related releases and other
waste-management amounts informs communities.

Second, EPA agrees with the American Petroleum Institute (API) that the
ARA for non-PBT chemicals should include section 8.8-waste-management
information in order to create consistency between PBT and non-PBT Form
A eligibility.  In other words, including the waste-management
information of section 8.8 in the Form A threshold determination for PBT
chemicals, as proposed, and not in the ARA for non-PBT chemicals will
add unnecessary complications and complexities in determining Form A
eligibility.

Third, EPA does not expect the inclusion of section 8.8 quantities in
the Form A threshold determination for non-PBT chemicals to add a
significant amount of burden to those facilities considering Form A.
Less than 4% of all non-PBT chemical Form Rs have a value greater than
zero in section 8.8.  Accordingly, section 8.8 quantities will not play
any role in most Form A eligibility determinations.  Further, because
section 8.8 is restricted to quantities involving remedial actions,
catastrophic events, or one-time events not associated with production
processes, EPA does not expect section 8.8 quantities to factor into any
facility's Form A eligibility determinations on a consistent, annual
basis.

b. Waste management activities should not be counted towards the ARA

Summary of Comments (by Abt):

Five commenters stated that waste management activities should not be
counted towards the ARA.  Several commenters said that the original
Congressional intent for TRI was to provide communities with information
on toxic releases, and the inclusion of recycling data in TRI reporting
was added only later under the Pollution Prevention Act.  While the
collection of waste management data may be informative, including it in
the ARA, which was not required under the PPA, has had the negative
effect of punishing facilities that recycle by not allowing them to take
advantage of Form A burden reductions.  Changing the definition of
"annual reportable amount" to exclude materials that are reclaimed and
recycled would provide incentive for pollution prevention activities.
The Consumer Specialty Products Association wrote that EPA should
ideally exclude amounts recycled and consumed for energy recovery - data
elements 8.2 through 8.5 - from calculation of the ARA, but at the
least, those quantities recycled or consumed for energy onsite - 8.2 and
8.4 - should be excluded.

NCASI wrote that, although not mentioned for non-PBTs in the proposal,
basing Form A eligibility solely on the total amount of a substance
released to the environment would be a more effective and
straight-forward burden-reducing option.  If this total were less than
some specified value, then there would be no need to estimate off-site
transfers and the amounts treated, used for energy recovery and
recycled.  Setting the cutoff value for total releases at 5000 pounds
would be an obvious choice, since it is currently commonly assumed by
TRI users that a facility submitting a Form A is releasing up to the
present threshold amount (500 pounds) to the environment, even though
the 500-pound threshold amount includes more than just releases.

Response:

EPA disagrees with commenters that the ARA criterion should reflect only
reported releases to the environment and not waste management activities
such as recycling and energy recovery.  EPA does not agree with these
commenters that by including waste management activities other than
releases in the ARA, Form A punishes facilities engaged in such
activities or in any way discourages pollution prevention.  Contrary to
these commenters' assertions, EPA believes that by including recycling,
treatment, and energy recovery as well as releases in the 5,000-pound
ARA, EPA is promoting pollution prevention.

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

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

Second, by including all waste management activities in the Form A
eligibility criteria EPA is encouraging facilities above the 5,000-pound
ARA to reduce their total waste management in order to qualify for Form
A.  If the Agency were to completely remove recycling, treatment, and
energy recovery activities from the ARA determination, as some
commenters advocate, EPA would be structuring Form A eligibility in a
way that lacks the incentive for facilities to engage in source
reduction.  Instead, for Form A eligibility facilities would only need
to convert release quantities above the Form A eligibility threshold to
some other waste management activity such as recycling and not reduce
waste altogether.  National policy states that pollution should be
prevented or reduced at the source whenever feasible.  Accordingly, the
Agency has decided to include all waste management activities under the
Form A threshold determination in order to ensure that Form A promotes
source reduction.

ii. Comments on threshold

Summary of Comments (by Abt):

Eleven unique comments representing fifteen commenters had comments on
revising the non-PBT threshold.  Several commenters (American Petroleum
Institute, The American Public Power Association, the Small Business
Administration) wrote in support of the proposed 5,000-pound threshold,
as providing substantial burden reduction with a minimal loss of
information.

Other commenters opposed the 5,000-pound proposed threshold because of
the loss of data at the local and state level, and the large, ten-fold
increase in the threshold.  Many commenters also opposed the proposal,
claiming it was arbitrary in nature.  The Waterkeeper Alliance wrote
that nowhere in the proposed rule does EPA even attempt to explain how
it arrived at a triggering threshold which is 10 times that of the
current level. EPA's utter failure to explain its rationale violates the
imperative that it properly and adequately set forth the reasons for its
actions.  See, Motor Vehicle Mfs. Assn. of the United States, Inc. v.
State Farm Mutual Auto Ins. Co., 463 US 29, 48-50 (1983); Appalachian
Power Co. v. United States Environmental Protection Agency, 135 F.3d
791, 818 (D.C. Cir. 1998).  The National Environmental Trust wrote that
EPA has given no justification for selecting a 5,000-pound threshold for
certification (or the 1,000 or 2,000 pound level included in the request
for comments).  The original 500-pound certification threshold was
devised in part to reward facility efficiency.  If EPA has decided that
ten times more production-related waste is acceptable in terms of
facility operation efficiency, the Agency should be clear about it and
say so.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, and WI wrote that the alternative reporting thresholds, or indeed
any reporting thresholds greater than the current one, are unlawful and
bad policy for the same reasons as the 5,000-pound threshold.  As Table
3 demonstrates, either of these alternative thresholds would create
numerous chemicals for which the substantial majority standard would not
be met given the minimal reasonable definition of the term. [see Table 3
data in Document ID 4553, p.36.]   In addition, the proposed alternative
ARA thresholds also violate the substantial majority standard, and there
is no statutorily-recognized reason to reduce reporting on these
chemicals.

OMB Watch wrote that it finds EPA's proposal to raise the TRI reporting
threshold for non-PBT chemicals from 500 to 5,000 pounds to be excessive
and overly drastic. The ability to file a simple certification form for
releases and disposals under 500 pounds was a controversial issue when
it was established by EPA in 1994.  Since the certification form was
implemented, EPA has considered the possibility of raising the threshold
several times.  However, each time the agency rejected these options and
left the 500-pound threshold in place.  To leap forward and propose a
10-fold increase in the threshold without any new research or analysis
to suggest that the impacts have changed is unwarranted and contradicts
EPA's previous determinations.  OMB Watch believes that any change in
reporting threshold, if done at all, should be done in smaller
increments to minimize the risk of unforeseen consequences.  For
instance, it would have been more reasonable for EPA to consider
doubling the threshold to 1,000 pounds.  If after implementation of the
new threshold, the agency determined that the change did not have an
adverse impact on health or data use, the agency could consider another
moderate increase.

Response:

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

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

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

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

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

EPA believes that an ARA of 5,000 pounds coupled with a 2,000-pound
release limit is an eligibility structure that encourages facilities to
move up the waste management hierarchy described in the Pollution
Prevention Act.  Therefore, with respect to the waste management
hierarchy, the final rule’s approach to Form A eligibility has an
advantage over the proposed rule’s ARA which failed to distinguish
between releases and the other waste management activities of recycling,
treatment, and energy recovery.

iii. Comments on specific non-PBT chemicals

Summary of Comments (by Abt):

Edison Electric Institute (EEI) wrote that EPA has also requested
comment on whether any non-PBT chemical poses such a degree of concern
that it should be excluded from Form A reporting.  EEI does not believe
that any chemical (whether PBT or non-PBT) should be automatically
excluded from Form A reporting eligibility.

Response:

Despite varying toxicity among the more than 600 non-PBT chemicals
subject to TRI reporting, EPA has decided to allow Form A to be
considered for all TRI-listed non-PBT chemicals.  EPA recognizes that
the TRI-listed non-PBT chemicals include a wide range of chemicals with
varying toxicities and varying chemical characteristics.  This
recognition as well as all of the concerns raised about the loss of
detailed TRI waste management information under the proposed rule, and
in particular, the impacts from the loss of detailed Form R information
on releases at the local level, have led EPA to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By placing a 2,000-pound limit
on the amount of releases that may be applied to the 5,000-pound ARA for
Form A eligibility, this rule preserves almost 60% of the total release
pounds that would no longer be reported on Form R under the proposed
rule at full utilization of Form A and at the same time, this rule
preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.  EPA believes that this approach to
expanded Form A eligibility for non-PBT chemicals appropriately balances
meaningful burden relief from one Form A eligibility threshold for all
non-PBT chemicals against the requirement to provide the public and
other data users with information that is consistent with the goals and
statutory purposes of the TRI program.

Furthermore, Form A provides important information.  Under this rule,
each Form A continues to serve as a range report, informing the public
that total releases is in the range of zero to 2,000 pounds and that
total waste management (which includes releases) is in the range of zero
to 5,000 pounds.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities.
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.

a. Specific non-PBT chemicals should be excluded from Form A eligibility
under new ARA or have a revised threshold

Summary of Comments (by Abt):

Four commenters wrote regarding excluding specific non-PBT chemicals
from Form A eligibility or revising their thresholds.  American
Petroleum Institute wrote that there are no TRI chemicals of sufficient
concern (except dioxin and dioxin-like compounds) to not be eligible for
the proposed Form eligibility.  One commenter (a medical doctor) wrote
that certain pollutants should have lower thresholds (for instance,
hexavalent chromium) and provision should be made in the rule to allow
lower thresholds as new information about toxicity and fate and
transport comes to light.  The American Public Health Association and
Children's Environmental Health Network wrote that all PBTs should be
excluded, as well as any chemical whose basic human developmental
effects information, especially neurodevelopmental information, is not
public.

OMB Watch wrote that EPA has a responsibility to use its resources to
ensure that policy changes that could affect public health are
sufficiently reviewed and determined to be safe.  Raising the reporting
threshold from 500 to 5,000 pounds is a policy that merits such a health
review.  Many of the chemicals the TRI program tracks are carcinogens,
or cause developmental, reproductive, liver, kidney, gastrointestinal,
neurological, hematological, cardiological, immunological, respiratory,
and other effects.  OMB Watch considers it unlikely that all of the
chemicals tracked under TRI would be below a level of concern for public
health when considering releases to the air and water of just below
5,000 pounds, which would be possible under the proposed change.
Indeed, OMB Watch believes the 5,000-pound threshold for detailed
reporting is an irresponsible and unhealthy level for most if not all
the chemicals tracked under TRI.  We demand that EPA commit to only
raising the Form A reporting eligibility thresholds to a level at which
the chemicals would not pose a significant health risk to nearby
communities. Once a facility begins releasing and disposing of chemicals
at a level that poses a credible health risk to local communities, those
communities have a right to know about the toxic pollution.  EPA's lack
of any analysis on the possible health implications of the reporting
threshold changes should be sufficient reason for the agency to withdraw
this proposed rule.

Response:

Despite varying toxicity among the more than 600 non-PBT chemicals
subject to TRI reporting, EPA has decided to allow Form A to be
considered for all TRI-listed non-PBT chemicals.  EPA recognizes that
the TRI-listed non-PBT chemicals include a wide range of chemicals with
varying toxicities and varying chemical characteristics.  This
recognition as well as all of the concerns raised about the loss of
detailed TRI waste management information under the proposed rule, and
in particular, the impacts from the loss of detailed Form R information
on releases at the local level, have led EPA to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By placing a 2,000-pound limit
on the amount of releases that may be applied to the 5,000-pound ARA for
Form A eligibility, this rule preserves almost 60% of the total release
pounds that would no longer be reported on Form R under the proposed
rule at full utilization of Form A and at the same time, this rule
preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.  EPA believes that this approach to
expanded Form A eligibility for non-PBT chemicals appropriately balances
meaningful burden relief from one Form A eligibility threshold for all
non-PBT chemicals against the requirement to provide the public and
other data users with information that is consistent with the goals and
statutory purposes of the TRI program.

Furthermore, Form A provides important information.  Under this rule,
each Form A continues to serve as a range report, informing the public
that total releases is in the range of zero to 2,000 pounds and that
total waste management (which includes releases) is in the range of zero
to 5,000 pounds.  TRI data users are currently able to access Form A
facility information via Envirofacts and TRI Explorer
(http://www.epa.gov/triexplorer) in the same manner that Form R facility
information is accessed.  Form A informs data users that a facility is a
potential source of releases and other waste management activities.
Using EZ Query in Envirofacts (http://www.epa.gov/envirofacts), data
users are able to access individual chemical Form As along with the TRI
Facility Identification Numbers (TRIFIDs) and the names of facilities
submitting Form As.

(1) Hazardous Air Pollutants (HAPs)

Summary of Comments (by Abt):

Nine commenters wrote specifically about excluding Hazardous Air
Pollutants (HAPs) from Form A eligibility.  All of the commenters
expressed concern about losing important data on HAPs, and the impact of
the loss on air quality modeling and the ability to regulate them - even
releases of under 5,000 pounds may have a significant impact.  The
National Environmental Trust (and local branches) wrote that EPA's
documentation for this proposal does not indicate that the Agency has
considered the impact of collecting less data on releases of HAPs on the
Agency's ability to track and potentially regulate those chemicals.
Nationally, 28% of Form Rs for HAPs would be eligible for Form A.  In
NH, 28% of Form Rs would be eligible; for SD,18.1%; for CA, 35.7%; for
ME, 28%; and for MN, 20%.

OMB Watch wrote that EPA's Air Toxics site lists the TRI program as the
only other means for citizens to get information on HAPs in their
communities.  According to OMB Watch, it is clearly the superior source
of information as well, being much more extensive and more current.  It
seems unlikely that chemicals with such serious health effects could be
considered safe when emitted at levels approaching 5,000 pounds.  As an
example, OMB discussed benzene, a HAP and a TRI-reported chemical.
Benzene is a known human carcinogen, and can cause various disorders in
the blood, including reduced numbers of red blood cells, aplastic
anemia, excessive bleeding, and damage to the immune system.
Reproductive effects have also been reported.  Based on this toxicology
data, OMB Watch believes that 5,000 pounds of benzene emissions could be
a significant health risk to workers and local residents, and EPA should
determine whether this actually is a health risk.  EPA's analysis of
raising the reporting threshold to 5,000 pounds reveals that 246,092
pounds of benzene releases would go unreported, and 393,790 pounds of
production-related benzene waste would also go unreported.  It is EPA's
responsibility to conduct an analysis of the health effects before
formally advancing a proposal and assure the public that the changes are
safe rather than placing the burden of proof on the public to establish
that a health concern exists.

Response:

EPA recognizes the importance of detailed release information about
Hazardous Air Pollutants (HAPs) regulated under the Clean Air Act.
Specifically, upon further analysis, the Agency anticipated that a
significant percentage of the approximately 12,000 Form Rs estimated to
be newly eligible for Form A under the proposal would have been
comprised of HAP chemical reports.  In particular, EPA estimated that 32
specific HAP chemicals identified by the Agency as “priority urban air
toxics” could have accounted for as many as 2,600 of the 12,000 Forms
at issue under the proposal.  In other words, these 32 high priority
chemicals (approximately 5% of all the TRI listed non-PBT chemicals)
could have accounted for almost a quarter of all newly eligible Form As.
 Based on this concern as well as other concerns over the loss of
detailed release information, EPA has decided to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By placing a 2,000-pound limit
on the amount of releases that may be applied to the 5,000-pound ARA for
Form A eligibility, this rule preserves almost 60% of the total release
pounds that would no longer be reported on Form R under the proposed
rule at full utilization of Form A and at the same time, this rule
preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.  EPA believes that this approach to
expanded Form A eligibility for non-PBT chemicals appropriately balances
meaningful burden relief from one Form A eligibility threshold for all
non-PBT chemicals against the requirement to provide the public and
other data users with information that is consistent with the goals and
statutory purposes of the TRI program.

(2) Carcinogens

Summary of Comments (by Abt):

Three commenters wrote specifically about excluding carcinogens from
eligibility for Form A.  Environmental Integrity wrote that it is not
clear why EPA would establish a higher threshold for exemption of human
carcinogens than it is prepared to accept for PBTs, and it will owe the
public an explanation of this distinction in its final proposal.  The
Ohio Environmental Protection Agency wrote that EPA should consider
establishing lower Form A eligibility levels for chemicals which can
cause serious health effects, such as carcinogens.  Carcinogens are
already noted in the TRl list of reportable chemicals as having a lower
de minimis level.

The New Jersey Department of Environmental Protection wrote that if the
proposed 5,000-pound threshold were in effect for the last 10 years
(1995 - 2004), detailed release and waste management data (nonproduct
output or NPO) of more than one million pounds of cancer-causing
compounds would not have been revealed (excluding lead).  Details such
as the following would not have been available to the public:

21,000 pounds of production-related waste (NPO) for the carcinogen
arsenic, among others, would not have been reported.  This would mean
that all arsenic data would be lost.

122,465 pounds of styrene production-related waste would not be
available and nearly 175,000 pounds of chromium (in compounds)
production-related waste would not be available.

[For details, see text and tables on p. 3-6, Document ID 2235.2]

Response:

Despite varying toxicity among the more than 600 non-PBT chemicals
subject to TRI reporting, EPA has decided to allow Form A to be
considered for all TRI-listed non-PBT chemicals.  EPA recognizes that
the TRI-listed non-PBT chemicals include a wide range of chemicals with
varying toxicities and varying chemical characteristics.  This
recognition as well as all of the concerns raised about the loss of
detailed TRI waste management information under the proposed rule, and
in particular, the impacts from the loss of detailed Form R information
on releases at the local level, have led EPA to modify the proposed
5,000-pound ARA by placing a 2,000-pound limit on releases of non-PBT
chemicals being considered for Form A.  By placing a 2,000-pound limit
on the amount of releases that may be applied to the 5,000-pound ARA for
Form A eligibility, this rule preserves almost 60% of the total release
pounds that would no longer be reported on Form R under the proposed
rule at full utilization of Form A and at the same time, this rule
preserves almost 80% of the burden reduction offered by the non-PBT
portion of the proposed rule.  EPA believes that this approach to
expanded Form A eligibility for non-PBT chemicals appropriately balances
meaningful burden relief from one Form A eligibility threshold for all
non-PBT chemicals against the requirement to provide the public and
other data users with information that is consistent with the goals and
statutory purposes of the TRI program.

NOTICE OF INTENT TO PURSUE REPORTING FREQUENCY MODIFICATIONS

Response to all comments on this issue:

As discussed in the preamble to the final rule, in a separate notice
issued on October 4, 2005, the same day the Phase 2 Proposed Rule was
published in the Federal Register, EPA announced its intent to explore
potential approaches for modifying the reporting frequency of facilities
that report to TRI.  70  FR  57871.  EPA has notified Congress, as
required by section 313(i)(5), of its intent to initiate a rulemaking to
modify TRI reporting frequency.  42 U.S.C. § 11023(i)(5).  This
statutory provision requires one-year advance notification to Congress
before initiating such a rulemaking.  Despite the requirement of
one-year advance notice before initiating a rulemaking as well as the
issuance of a separate, albeit concurrent, Federal Register notice, many
commenters who responded to the proposed rule to expand Form A
eligibility also voiced support or opposition to any modification to the
TRI reporting frequency.  While EPA has preserved the comments submitted
on TRI reporting frequency, these comments are outside the scope of the
rulemaking to expand Form A eligibility and therefore EPA has not
responded to them as part of this rule.  With regard to TRI reporting
frequency, the Agency has decided not to pursue any changes in the TRI
reporting frequency at this time.  While EPA does not intend to take any
further actions concerning the TRI reporting frequency, EPA will adhere
to the process outlined in 42 U.S.C. 11023(i)(5) and provide 12 months
advance notice to Congress if the Agency decides in the future to
initiate changes to the TRI reporting frequency.

BURDEN ESTIMATION METHODOLOGY

Comments submitted on burden estimation methodology (by Abt):

1. Comments on the methodology used in the engineering estimates (by
Abt):

EPA did not measure the actual time the tasks take for actual people in
actual industries. Nor, in this analysis, does EPA report that it asked
TRI reporters how much time the tasks took them.  No effort seems to
have been made to determine whether EPA's time estimates are
representative of time actually needed on the average among
TRI-reporting industries as a whole.  And no effort seems to have been
made to determine whether time needed for particular tasks might vary
according to industry category.  There is, in fact, no real explanation
in the supporting materials in EPA's docket of how the estimates were
derived.  Without an understanding of this, there can be no meaningful
assertion by EPA that they are accurate.

A. Burden should be estimated using survey data (by Abt):

A new, statistically robust burden survey is warranted to produce a
reliable and accurate estimate of TRI reporting burden under the current
regulations and using current reporting tools (i.e., TRIME). [For
details, see p. 2,12; Document ID 1961]

EPA's proposal to reduce the burden to industrial facilities of
compiling and reporting TRI data is compelling.  To the extent that most
facilities do indeed face a burden in complying with TRI requirements
for data submission, reducing unnecessary costs to industry should be
considered seriously.  A first step would be to consider empirical
evidence of the existence and magnitude of any burden related to data
collection and reporting beyond that provided by EPA's meetings with
stakeholders.  That burden would be measured most directly by the time
and other costs for facility personnel to measure or estimate releases
of listed chemicals, and to report the data to EPA and other parties,
including duplicate efforts where states require a similar kind of
reporting.

First, OMB Watch questions the calculations of overall burden for
reporting TRI information used by EPA in the proposed rule.  The numbers
used are the third or forth set of burden estimates that EPA has
referenced over the past few years.  It is unclear why these numbers are
accurate, and, furthermore, it is unclear why previous burden estimates
EPA has generated are not used.  In EPA's 2003 Information Collection
Requests (ICR) for the Form R and Form A, EPA significantly revised the
burden estimates for reporting TRI downward, based on the actual
reporting times reported by companies.  The 2003 ICR notice for Form R
includes several reasons for dramatically reducing the burden estimate
including a drop in the burden for calculating and reporting from 47.1
to 14.5 burden hours.  Overall, the ICR made adjustments that decreased
the total burden about 2.68 million hours.  These lower burden numbers
indicate that there is no undue reporting burden on companies and would
provide less reason for pursuing burden reduction rulemaking.  However,
in the proposed rule, EPA appears to be using numbers which are closer
to the older, inflated numbers.  The proposed rule claims the baseline
burden for Form R is 47.1 hours for PBTs and 25.2 hours for non-PBTs.
Both figures are much higher than the estimates from the 2003 ICR, which
were based on "actual TRI reporting facilities." ... Additionally, the
burden reduction depends greatly upon the baseline burden.  If the
baseline burden used in the proposed rule is inflated, as OMB Watch
believes it is, then the agency may list an inflated reduction of burden
as a benefit of the proposed rule.  However, this “benefit” would
never be realized if the burden-revised figures from the 2003
Information Collection Request, which appears to be the more correct
analysis of burden, are used.  If the more-accurate 2003 ICR numbers
replace the inflated numbers EPA used in the analysis it has prepared to
justify the proposals, then the burden reduction is much less than what
EPA purports.

2. Comments on the reasonableness and accuracy of the July, 2004
engineering estimates (by Abt):

The disparity between burden estimates presented in the proposed rule
indicates an inadequate understanding of the true burden associated with
TRI reporting.  Without an adequate understanding of the true burden,
attempts to quantify burden reductions are very questionable.  Results
from EPA's alternate methodology proposed in the rule for calculating
the form completion burden vary significantly from previous estimates.
... The new engineering estimates are notably different from current
calculation results, so we do not know what the true burden or burden
reduction is, if any. [For details, see p. 2, Document ID 1569]

EEI has reviewed the Abt Associates report, which estimates the time
needed to complete a Form R report, and believes that the Abt report
presents only a best case estimate of the time needed to complete a Form
R.  For many power plants, the actual time needed to complete a Form R
can be much longer than those estimated by Abt Associates.  First, the
Abt estimates assume a “typical” facility where there are no
significant changes in a facility’s operations or waste management
practices from one year to the next.  Many coal-fired power plants do
not fit this definition. ... The time needed to collect the appropriate
information and to make the calculations is far greater than the time
estimated by Abt.  In addition, waste management practices can change
from one year to the next at coal-fired power plants.  These changes
require time to analyze and estimate releases to the various media. ...
The time estimates in the Abt report also rely heavily on a plant using
the same methodologies and calculations as the previous year and on
having persons with detailed knowledge and experience with EPA’s TRI
requirements available to prepare the reports.  These assumptions are
optimistic and, as a result, produce time estimates that are too short.
... For all these reasons, EEI believes that implementation of the
proposed revisions to Form A reporting would have an even greater
economic benefit than EPA has estimated. [For details, see p. 4-5,
Document ID 2720]

EPA asks for comment regarding the alternate burden estimation
methodology that it recently commissioned.  The States believe that this
alternative methodology, which is discussed in Part IV.C [see comment in
outline topic VIII.1] above, is more accurate than the existing
OMB-approved methodology.  We are not convinced that the peer review
panel is correct that EPA overestimated the experience and knowledge
that a typical TRI reporting facility would have.  TRI has been in place
for nearly two decades, and anecdotal evidence in many states indicates
that TRI reporting facilities have developed sufficient experience and
knowledge to make reporting a relatively routine matter.

3. Comments on the external Peer Review Panel conclusions (by Abt):

Under the current approved ICR methodology, the Form R burden estimates
for PBT and non-PBT chemicals for form completion and calculation are
47.1 and 25.2 hours respectively. ... These estimates are low compared
with our members' experience with TRI reporting.  The peer reviewers of
the document offered some possible reasons for the estimates being too
low including those listed below. ·TRI reporting experts ("three staff
with nearly 40 years of combined experience") were used to do the
estimates. The time it would take these experts to complete the form is
not typical of most people who are actually completing the forms. ·EPA
assumes too much burden reduction after the first year of reporting
(i.e., in "subsequent years.") EPA fails to recognize changes in
personnel, changes to instructions and guidance, and the fact that rule
familiarization is necessary each year. ·EPA does not adequately
account for the time that goes into making threshold determinations,
which is often necessary for chemicals for which forms are not even
filed (when they are determined to be manufactured, processed, and
otherwise used below the thresholds). ·EPA does not adequately account
for activities in areas of data gathering, management involvement,
quality assurance, and others that are not directly part of form
completion. ·EPA's assumption that facilities are "modern and
well-organized" may not hold true for many facilities. ·The analysis
seems to seriously underestimate the time necessary to conduct some
tasks such as reviewing complex technical guidance materials,
identifying fugitive release points, identifying relevant process
operating conditions, determining materials usages, obtaining waste
management information, review of forms by management, data entry (i.e.,
typing) and others.  Many of the peer reviewers provided useful insights
into specific instances in which the engineering estimates are
unrealistically low.  API urges EPA to address these peer reviewer
comments in any new methodology for estimating TRI burden.

The peer review does not in any case address the validity of the key
assumptions of the burden or burden reduction estimates.  The main
qualification presented for the reviewers is that they are external to
EPA and experienced at filling out TRI forms.  Not being EPA employees,
however, is hardly tantamount to independence or disinterestedness.  The
proposed Form A threshold change is not something that arises from the
interests of EPA itself, but from the desires and interests of reporting
industries.  The individuals doing the "peer" review, it must be noted,
all come from the business sector.  The assertion that the group is
"diverse" isn't accurate.  It represents only business interests, not
public interests or environmental health interests.  It represents only
the interests of TRI reporters, not the interests of TRI data users.

The Form A is not as lengthy as the Form R, and thus will conceivably
reduce the time required to complete a TRI Report.  However, Peabody
agrees with the external peer review in that EPA has overestimated the
experience of a typical TRI reporting facility, and consequently, has
underestimated the time it takes to complete a Form A or Form R.

4. Comments on the current OMB-approved reporting burden estimates (by
Abt):

EPA's unit burden estimates are the same as those used in the most
recent approved Information Collection Request (ICR).  API submitted
comments on that ICR, which we incorporate by reference.8  We found
several shortcomings in the methodology used to derive these estimates.
First, by deriving a "per form" estimate from all facilities and then
applying it to an assumed 3 forms per facility for the entire reporting
universe, EPA is not adequately portraying burden. ... Second, EPA does
not acknowledge the time required for rule familiarization (except in
the year after a new final rule) and does not adequately consider time
spent for training. [For details, see p. 9-10, Document ID 1961]

If the burden estimates were merely dictated by the White House Office
of Management and Budget (OMB), then the public could make a rebuttable
presumption that they were politically imposed, rather than based on
sound science, objective observation, or economic reality.  Good
rulemaking under the Administrative Procedures Act requires an agency to
document on the record the facts and justifications supporting its
proposed action.  Yet simply saying that burden estimates were handed
down by OMB removes this key and fundamental issue from the rulemaking
record altogether.  OMB is not bound to follow the transparency
requirements of the Administrative Procedures Act as it intervenes in
agency rulemaking -- nor is it obligated to disclose the substance or
detail of its ex parte communications with industry groups who often
have a financial interest in the outcome of the rulemaking, and often
have also made large campaign contributions to the current occupant of
the White House.  This is a recipe for the corruption of government, and
certainly a reason for concern that the present TRI proposal may be
seriously flawed.  OMB itself has no original expertise in this area.
OMB officials do not fill out TRI forms.  They do not report publicly
having ever done research on how much time it takes industry to fill out
the forms.  The EPA docket includes no information on how OMB's
prescribed estimates were derived.  In fact, the EPA docket does not
even try to assert that the burden estimates are accurate or justified
by a factual record.  It simply reflects the reality that EPA used the
estimates because OMB told it to, and that OMB has the power to dictate
agency actions.  In other words, the regulatory record shows on its face
that the burden estimates are arbitrary and capricious.  Furthermore,
information in the docket for this rulemaking actually suggests that OMB
imposed inaccurate or unrealistic burden estimates on EPA.  The July 16,
2004, memo from Abt Associates to Paul Borst at EPA
(EPA-HQ-TRI-2005-0073-0011) states that OMB imposed higher burden
estimates than EPA originally proposed.  Overestimating the burden, of
course, overstates the case for EPA's proposed data cutbacks, without
following the rules of transparency and offering the factual
justifications that are supposed to make fair rulemaking possible.

5. Any other comments on the methodology and results as well as any
data that the public feels would be useful in a revised analysis (by
Abt):

First, it is not entirely clear there is a sense of "burden" felt by
most TRI reporting facilities.  Based on our survey of facility TRI
contacts across the country, the average amount of time it takes
employees yearly to fill out and submit the TRI reporting form was just
under five weeks.  This figure does vary considerably, however, across
the range of facilities. When asked whether their experience with the
TRI program was positive, neutral, or negative, only 14% expressed a
clearly negative assessment.  In contrast, 36 percent reported either
strongly positive or positive experience with the TRI, and 50 percent
indicated a neutral or mixed position on the issue.  Consistent with
these findings of either positive or neutral experience with the TRI
program, a number of the facility contacts commented that filling out
the Form R had become easier in recent years and some made positive
comments about the EPA's software that has allowed for an easier
reporting of data.  The variations in perspectives across these
facilities suggest, at a minimum, that the TRI program is not seen
uniformly as a burden. ... A very high percentage of respondents (73
percent) also indicated that as a result of this experience with the
program they are better able to understand what they need to do for
subsequent TRI reports.  That is, with experience, the burden of TRI
reporting seems to decline. ... Any assumption of a burden to the
business sector should be backed with empirical data. It is not enough
for EPA to believe in the abstract that there is a burden among TRI
reporting facilities.  Rather, arguments for reducing burden should be
based on the best available data as to whether a substantial burden
actually exists.  It may be that the burden varies by industrial sector
or other key characteristics such as size of facility, in which case
greater efforts may be needed to assist selected facilities in complying
with TRI requirements. [Results and suggestions based on 3-year study of
the effects of TRI on corporate and community decision-making, including
two national surveys. See Document Number 900.1 for details.]

The burden reduction estimates compiled by EPA fail to account for
several additional issues.  They do not appear to account for additional
activities necessary to update/train facility representatives on the
changing requirements.  Even more importantly, for states and other
organizations which actively compile, analyze and distribute the data,
the burden reduction estimates do not account for additional efforts
necessary to track and convey the changes in the reporting requirements
to citizens and other public groups who make use of the data.  Changes
to the reporting requirements can cause significant complications when
evaluating overall trends and conducting cross-year analyses.  In many
cases, re-programming databases to account for changes in the basis on
which data is reported requires significant time and effort.  When these
additional aspects are considered, there may be no positive burden
reduction at all.

The TRI reporting burden results from the lengthy analysis of materials
that a facility manufactures, processes, or otherwise uses, and the
tedious calculations that accompany this process.  Such calculations
pertinent to the coal mining industry include, but are not limited to,
the detailed exploration of products used at a facility for applicable
TRI chemicals and quantities, the coincidental manufacture of chemicals
through storm-water runoff, and the otherwise use of beneficially used
coal combustion waste (CCW).  The TRI analysis results in many hours of
work often ending in the conclusion that no TRI chemicals exceed any
applicable threshold.

Over the years, SC Johnson has submitted Form Rs for a range of 8 to
approximately 20 SARA reportable chemicals.  In 2004, we submitted 11
Form Rs.  In recent years, our TRI filings have required about 400 hours
of labor and up to $35,000 in consultant support.

OMB Watch is troubled about the lack of clarity surrounding the burden
estimates. Considering that burden is why EPA is submitting the proposed
rule, the figures are critical to determining if the rule is justified.
The first issue is whether the burden on companies filing TRI forms is
unduly high.  The second issue is that the burden estimates constitute
the entire benefit that EPA argues will be gained by making these
reporting changes.  OMB Watch questions both aspects of EPA's
justification. ... In other words, OMB Watch believes the proposed rule
fails in two respects.  First, it fails to establish a realistic
baseline burden estimate and, instead, presents figures which are
remarkably close to an estimate previously rejected by EPA.  Second, the
agency overestimates the burden reduction that will be gained by the
proposed changes, in part, because EPA fails to consider that companies
will have to calculate releases to determine whether or not they are
eligible for Form A and, in part, because of the inflated baseline.  The
combination of these two factors leads to an unreasonable and inaccurate
estimate of the impact that the proposed changes to TRI will have on
burden.  EPA should have a clearly establish baseline burden and
reliable estimate of the burden reduction before moving forward with the
drastic reporting reductions that EPA is currently proposing. ... It is
clear from these statements that the burden posed by TRI, even from an
industry perspective, is at best questionable.  Before the EPA moves
forward with the proposed changes to the TRI program, OMB Watch believes
that EPA should reach a consensus on a reliable way to calculate the
burden that TRI places on companies.  The proposed rule even mentions
that there is some disagreement even among the peer reviewers on the
methodology for calculating burden.  OMB Watch believes that the issue
of burden calculation must be settled before moving forward with a
burden reduction rule.  The agency asks for input on the issues and
questions raised by burden peer reviewers. However, the agency should
have received public input and response before moving forward with the
proposed rule.  Instead, the agency appears to be rushing through the
process and proposing a burden reduction alongside acknowledgements that
the burden estimates are still in question.  Given the constantly
changing numbers put forward by EPA, OMB Watch recommends that EPA
withdraw or suspend the proposed rule change until an accurate
assessment of the burden placed on companies is calculated.  Such a
study should be able to explain why, in the past, a wide range of
calculations were reached, why EPA is choosing not to use estimates that
differ from its current calculations, and why companies across the
United States do not agree with the finding that the TRI program is
unreasonably burdensome.

EPA Response to all comments submitted on burden estimation methodology:

Several comments addressed the Agency’s proposed methodology for
improving the estimation of calculation and form completion burden.  As
discussed in the preamble to the proposed rule, EPA used the proposed
rule as a means to seek comment on this proposed methodology.  The
preamble explained that the approach taken by the Agency in developing
the new burden estimation methodology was to assemble a team of persons
with knowledge or experience related to the preparation of TRI reports
who then applied their best professional judgment to break down the
reporting requirements into separate item-specific tasks, and then
estimate the average time required to complete each task.  The report
was internally vetted through Agency TRI program personnel in the
Regions and at Headquarters.  The Agency also conducted an external peer
review of this new analysis to assess the reasonableness of the new
methodology and specific burden estimates.  The engineering estimate and
the peer review summary were placed in the docket.  In the preamble to
the proposed rule the Agency solicited comment on the reasonableness and
accuracy of the methodology, form completion steps and specific burden
estimates as well as on the conclusions of the external peer review.

In response to this request for comment, several commenters addressed
the engineering estimates.  Some commenters questioned the accuracy of
the estimates.  One commenter noted that EPA did not measure the actual
time the tasks take for actual people in actual industries.  Another
commenter suggested that a new, statistically robust burden survey is
warranted to produce a reliable and accurate estimate of TRI reporting
burden.  Some commenters claimed that the engineering estimates of TRI
reporting burden are too low because EPA overestimated the experience of
a typical TRI reporting facility in completing its TRI reporting
obligations.  One commenter asserted that the notable difference between
the burden estimates of the engineering analysis and the OMB-approved
information collection request (ICR) burden estimates calls in question
the true burden associated with TRI reporting.  Aside from the
engineering estimates, in its comment OMB Watch compared the burden
estimates in the current and previous OMB-approved ICR figures to
question the validity of the baseline burden estimates relied upon by
EPA in this rulemaking.  API’s comment stated that it submitted
comments on the current ICR, for which it found several shortcomings in
the methodology used to derive estimates.

While EPA greatly appreciates the comments provided on the proposed
methodology for estimating TRI reporting burden, and will preserve these
comments and may consider them in future ICR renewals, as stated in the
preamble to the proposed rule, the burden methodology relied upon in the
proposal was based on the currently approved estimates of the time
required to complete a Form R or Form A and is summarized in the
economic analysis contained in the docket for the proposed rule.
Similarly, the burden methodology relied upon for the final rule is
based on the current OMB-approved ICR.  For more information on the
burden estimates please refer to the economic analysis for the final
rule, which has been placed in the docket.  For more information about
the currently approved ICR, please access the following Agency website:
 HYPERLINK "http://www.epa.gov/tri/lawsandregs/index.htm#icr"
http://www.epa.gov/tri/lawsandregs/index.htm#icr

ECONOMIC AND REGULATORY ANALYSIS

1. Cost savings estimates are too high

Topic Comment Summary (by Abt):

Four commenters stated that the burden reduction cost savings estimates
are too high. One commenter stated that the proposed rule would only
shift the burden of identification and enforcement of public health
issues from industry to the public.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI stated that cost savings are overestimated for several reasons:
(1) according to a study that developed an alternate methodology for
improving the estimation of the burden of completing these forms (the
"alternate burden estimation methodology"), the estimated amount of time
saved by each use of Form A would be approximately 25 percent lower than
the figures EPA used in deriving the $430 and $790 figures, resulting in
an aggregate burden reduction of $5.54 million, not $7.38 million; (2)
the $430 and $790 figures include approximately $81 in recordkeeping/
mailing costs, but since facilities would still have to mail Form A, and
would still need to keep records to determine whether they qualify for
Form A, it is not clear why a benefit reduction for
recordkeeping/mailing costs of any amount, let alone this full amount,
should be attributed to each form; (3) EPA contends that facilities
reporting on Form A would save 17.5 hours per form because they would no
longer need to determine the maximum amount of the TRI chemical on-site
and would not need to calculate the production ratio, but the States
doubt that these two activities are responsible for approximately
one-third of the Form R (17.5 of 52.1 hours) burden reduction. The
Attorneys General also stated that using a different basis for
reportable (waste-based) thresholds for PBT chemicals - the ARA - and
for nondioxin PBT chemicals - the PRA - poses a risk of confusion among
reporting entities and could result in increased burden.

Deleware Department of Natural Resources and Environmental Control
stated that the claim that burden reduction would accrue to facilities
using Form A because the maximum amount on site is not reported on this
form and thus would not need to be calculated (70 Fed. Reg. 57841) may
not be correct in many situations, as this amount is required for EPCRA
Sections 311/312 reporting.

Response:

While EPA greatly appreciates the comments provided on the proposed
methodology for estimating TRI reporting burden, and will preserve these
comments and may consider them in future ICR renewals, as stated in the
preamble to the proposed rule, the burden methodology relied upon in the
proposal was based on the currently approved estimates of the time
required to complete a Form R or Form A and is summarized in the
economic analysis contained in the docket for the proposed rule.
Similarly, the burden methodology relied upon for the final rule is
based on the current OMB-approved ICR.  For more information on the
burden estimates please refer to the economic analysis for the final
rule, which has been placed in the docket.  For more information about
the currently approved ICR, please access the following Agency website:
 HYPERLINK "http://www.epa.gov/tri/lawsandregs/index.htm#icr"
http://www.epa.gov/tri/lawsandregs/index.htm#icr

A. Form A utilization rates are not taken into account

Topic Comment Summary (by Abt):

Seven commenters stated that the burden reduction cost savings estimates
are too high because Form A utilization rates are not taken into
account. Many stated that because current Form A utilization rate is
about 50 percent, it is inappropriate for EPA to estimate cost savings
assuming 100 percent Form A utilization and recommend EPA reduce by half
its cost and burden savings estimates for the proposed rule.

Deleware Department of Natural Resources and Environmental Control
stated that statements made by EPA in the FR notice: "EPA believes that
many such facilities may choose to continue using Form R, since the
burden of completing Form R for such facilities is small, and Form R
allows them to show the public that they are neither releasing nor
generating and managing as waste any of the PBT chemicals" (70 Fed. Reg.
57839) and for non-PBT's, "it is important to note that the actual
burden savings may be considerably less if historical rates of Form A
use continue in the future" (70 Fed. Reg. 57842) demonstrate that the
additional effort necessary to complete a Form R versus a Form A is not
significant. As noted by EPA within the proposed rule, when the 1994
rulemaking established the Form A option, "only about half of the
eligible respondents actually switched to Form A" (70 Fed. Reg.
57841-42).

American Petroleum Institute (API) and GE Corporate Environmental
Programs stated that if the proposed rule does not address the reasons
for low utilization of Form A, then there is no reason to expect that a
significantly larger percentage of eligible facilities will choose to
use Form A under the proposed rule than is currently the case.

Michigan Department of Environmental Quality stated that there is little
or no indication that changing the eligibility threshold and expanding
its use to PBT chemicals will result in increased reporting on Form A.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI calculated that applying the 54 percent usage rate to EPA's
burden reduction figure, the aggregate burden reduction would be $3.99
million, or only $80,000 per state on average.

Response:

The Agency acknowledges that the actual burden reduced by the rule may
be less than the estimate presented in the rule because some facilities
that are eligible for Form A will choose to report on Form R. Because it
is unknown with any precision the facilities that will be eligible and
what utilization rate will result from the proposal, EPA chose to base
its estimates of burden reduced on OMB-approved burden estimates and all
facilities that appear based on past data to be eligible under the new
criteria. The historic Form A utilization rate may or may not be
predictive of the prospective utilization rate resulting from the Form A
proposal.

B. Data collection burden is similar for both Form R and Form A

Topic Comment Summary (by Abt):

21 unique comments representing 22 commenters stated that the burden
reduction cost savings estimates are too high because the data
collection burden is similar for both Form R and Form A. Most of the
commenters, including the American Petroleum Institute, General
Electric, the US Department of Energy, the Massachusetts Toxics Use
Reduction Act program, New Jersey Department of Environmental
Protection, the Society of Environmental Journalists, and NCASI stated
that they believe that most of the burden associated with TRI reporting
is in determining manufacturing, processing, and use quantities for
threshold determinations and then estimating releases and the other
waste management quantities, not in filling out the form. Commenters
stated that therefore, the only actual burden reduction realized is the
time to fill out the Form R versus Form A, which is minimal.

Eastman Chemical Company stated that by the time one collects all the
data needed for the 8.1-8.7 demonstration, basically all the work is
done for completion of Form R. Historically, Eastman has had a policy of
only submitting Form Rs, because of the insignificant difference in
burden plus concern with the Agency's enforcement approach. Onyx
Environmental Services also stated that this burden reduction initiative
will have only a minor impact in reducing the burden associated with
Onyx facilities preparing and filing the TRI report because facilities
must still review their records to determine if they meet the Form A
submittal requirements.

Delaware Department of Natural Resources and Environmental Control asked
why, if most of the Form R data elements must still be calculated to
determine if a Form A can be used, this data should go unreported.

New York State Department of Environmental Conservation stated that
EPA's estimates of burden reduction appear to focus on the time needed
to complete Form R vs. Form A. EPA's estimated burden reduction ranges
from 11.6 to 15.5 hours for PBTs, and from 5.7 to 7.6 hours for
non-PBTs. Companies will still need to track data, keep records, etc.,
regardless of which form they complete. The burden reduction amounts may
only be a small fraction of the total record keeping hours.

New Jersey Department of Environmental Protection stated that on page
57841 of the Federal Register proposal states that "… savings will
accrue because the facility would no longer need to determine the
maximum amount of the TRI chemical on-site at any one time in Section 4
of Form R." First, identifying this one data element is a very weak
justification of burden reduction. Second and more importantly, this is
simply not true. As noted above for the types of records that a facility
should maintain, the EPCRA Section 312, Tier II inventory reporting
requirement, these data elements still need to be calculated and records
maintained. Further, the same page and paragraph of the Federal Register
continues: "Moreover, the Production Ratio, which measures the relative
percentage of a TRI chemical used in a product relative to the year
before, would not have to be calculated if a facility submits a Form A."
This is a rather simple calculation step saved in the process. The data
that supports the determination of a Production Ratio will still need to
be collected and recorded per EPA documentation guidelines and if a
facility exceeds the Form A threshold from one year to the next, it will
need to employ these data for submission of a Form R. The next sentence
continues: "Eliminating the need to calculate these and other Form R
data elements that are not included on the Form A result in an estimated
burden savings of 17.5 hours per Form A." While on the same page at the
bottom of the middle column the proposal states: "Company records
supporting such determinations must be made available to EPA inspectors
upon request." This indicates with certainty that calculations need to
be made in support of determining which form, R or A is applicable in
any given year. Therefore, the above burden savings of more that two
work-days per form (i.e., 17.5 hours) seems highly overestimated to
enter data onto a form that is already recorded and documented for
compliance purposes. In addition, the use of the TRI-ME reporting
software further assists and streamlines the reporting process.

National Mining Association stated the truly significant TRI reporting
burden arises from the fundamental calculations a facility must make to
determine (1) whether it must file an annual TRI report(s) and (2) what
its "releases" may be. While it may take less time to complete a TRI
Form A as compared to a TRI Form R, completing a TRI reporting Form R or
Form A is a relatively small part of the facility's burden. It is the
many hours of data gathering and analysis leading up to that point that
make up the bulk of the TRI reporting burden.

National Environmental Trust stated that the American Chemistry Council
agrees that "the cost of reporting is in the calculations, not filling
out the forms." The need for many of those calculations will not
disappear if this proposal is adopted because facilities will have to be
able to document that they meet the new certification threshold anyway,
and by the ACC's own admission, the process of making these calculations
boosts efficiency.

Response:

The Agency acknowledges that data collection and analysis costs may be
significant and actual burden saved by this rule may vary from facility
to facility.

EPA believes that facilities with releases and other waste management
amounts well below the threshold for Form A may be spared the burden of
detailed calculations each year to determine eligibility for Form A.
Thus, it is possible that with the expanded potential to use form A,
some facilities that had previously been eligible to use form A in the
past but had not chosen to do so might begin incorporating use of the
form at their facility because it would take less strenuous calculations
to ensure that they have qualified.

The Agency also agrees that the availability of TRI-ME reporting
software is likely to assist and streamline the reporting process. This
could mean that the Agency's Form R reporting cost estimates are
overstated, and thus the Agency's estimate of the cost savings
associated with the rule could be overstated.

2. Cost savings estimates are too low

Topic Comment Summary (by Abt):

One commenter stated that cost savings estimates are too low. The US
Small Business Administration stated that industry commenters have long
contended that EPA has been underestimating the costs of complying with
TRI, particularly in recent years. The Advocacy-sponsored JFA report
cites costs of more than $300 million annually for the TRI program. In
addition, facilities bear substantial indirect costs from 'piggyback'
requirements associated with a TRI listing, such as federal storm water
regulations and other federal and state requirements (e.g., state
pollution prevention requirements) triggered by TRI reporting. Given the
underestimated costs of preparing the Form R, we believe that EPA has
substantially underestimated the savings from the expanded use of the
Form A. In addition, EPA has not accounted for the Form A savings that
would result from the reduction in the degree of precision of the
engineering calculations needed to estimate a 5000 pound threshold,
instead of a 500 pound threshold.

Response:

While EPA greatly appreciates the comments provided on the methodology
for estimating TRI reporting burden, and will preserve these comments
and may consider them in future ICR renewals, as stated in the preamble
to the proposed rule, the burden methodology relied upon in the proposal
was based on the currently approved estimates of the time required to
complete a Form R or Form A and is summarized in the economic analysis
contained in the docket for the proposed rule.  Similarly, the burden
methodology relied upon for the final rule is based on the current
OMB-approved ICR.  For more information on the burden estimates please
refer to the economic analysis for the final rule, which has been placed
in the docket.  For more information about the currently approved ICR,
please access the following Agency website:   HYPERLINK
"http://www.epa.gov/tri/lawsandregs/index.htm#icr"
http://www.epa.gov/tri/lawsandregs/index.htm#icr

EPA does not take into account requirements that are triggered by TRI
reporting when calculating the burden associated with the TRI
information collection.  Burden associated with additional requirements
outside of the TRI program is assessed when those requirements are
promulgated as necessary.

3. Deficiencies in Burden Reporting Estimates

Topic Comment Summary (by Abt):

One commenter stated that there are deficiencies in the burden reporting
estimates. The Delaware Department of Natural Resources and
Environmental Control stated that EPA’s burden reduction estimates do
not appear to account for additional activities necessary to
update/train facility representatives on the changing requirements. Even
more importantly, for states and other organizations which actively
compile, analyze and distribute the data, the burden reduction estimates
do not account for additional efforts necessary to track and convey the
changes in the reporting requirements to citizens and other public
groups who make use of the data. In many cases, re-programming databases
to account for changes in the basis on which data is reported requires
significant time and effort. When these additional aspects are
considered, there may be no positive burden reduction at all.

Response:

The commenter is correct that the Agency's burden estimates associated
with this rule do not attempt to account for any rule familiarization
and adjustment costs such as the training of facility representatives
regarding the provisions of this rule. However, the Agency believes that
any such costs are likely to be negligible. While the baseline unit
burden estimates do attempt to account for the rule familiarization
costs that would occur to a facility during first year of compliance
with TRI reporting requirements, this rule primarily affects facilities
that are already reporting to TRI. Since facilities impacted by this
rule are already familiar with TRI reporting, the Agency expects that
any familiarization and adjustment costs from this rule will be
insignificant

With regard to the burden on data users, EPA does not analyze the burden
of TRI data users because use of TRI data is voluntary.  However, EPA
strives to make TRI data easy to use and understandable to the public.
EPA will continue to work towards improving the accessibility of the
data.

4. Comments on the Impact Analysis

Topic Comment Summary (by Abt):

Four commenters made comments on the Impact Analysis. The State
Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM, VT, WI
stated that the proposed rule is contrary to evidence regarding the
benefits of the TRI program and is not based on documented need. For
example, EPA has not conducted comprehensive studies for all communities
potentially affected by the proposed rule to determine the magnitude and
scope of effects that the proposed rule may have on the amount of TRI
reporting available in those communities. States' preliminary, limited
analyses demonstrate that the proposed changes may significantly reduce
the amount of TRI reporting available in some communities, including
disproportionate impacts on minority or low-income communities.

In regard to the ZIP code analysis assessing impacts of increased Form A
eligibility for non-PBTs, the State Attorneys General stated that under
the proposed changes there would be over 1100 ZIP codes where the amount
of non-PBT toxic chemicals would likely be impossible to determine
because all TRI reporting would be done on Form A. In individual states,
the proposed rule could have wide ranging impacts. In New Hampshire,
most businesses are small, and the proposed changes would allow 119 of
the 151 businesses that currently providing full Form R reporting to
stop doing so. The loss of this data would affect many programs, both
state and local.

OMB Watch stated that it is EPA's responsibility to review
community-specific impacts of the agency's proposed changes on the use
of TRI information. The agency should have supporting evidence that
establishes that the changes and subsequent loss of data will not
adversely impact the information's ability to be of use to stakeholders.
The agency offers no data or analysis to support its conclusion that the
usefulness of the TRI to the public will not be compromised. The agency
provides no review of how often data that will be lost under the changes
has been accessed and/or downloaded by users of EPA's online search tool
TRI Explorer. The agency did not survey TRI users—community groups,
state officials, public interest groups, etc.—on their opinions of the
impact on the proposed changes on the ways in which the various groups
use the data. OMB Watch believes that EPA should withdraw the current
rulemaking until the agency has research firmly establishing that any
proposed changes in the amount of information collected will not
adversely affect the uses of TRI data.

Further, OMB Watch stated that EPA should explain whether the threshold
reporting changes in the proposed rule will interfere with any of the
types of activities described in the examples described in their
submission and review any other examples of TRI data use and explain how
those activities will be able to continue unimpeded by the loss of data
that would result from the proposed changes. [Examples provided in text
and in Appendix A of Document ID 4563.]

The US Small Business Administration (SBA) wrote that EPA’s Impact
Analysis estimates will overstate the actual impacts because many
facilities will continue to use Form R regardless of a change in Form A
eligibility. It is likely that many of the facilities that continue to
use Form R are larger firms that can more easily absorb the burden of
preparing Form R.

In regard to the ZIP code analysis assessing impacts of increased Form A
eligibility for non-PBTs, SBA wrote that EPA's distribution of number of
Form Rs lost is considerably different from the distribution calculated
by their contractor, Pechan. To try and determine the cause for the
discrepancies, Pechan conducted a review of EPA's data for the zip codes
for which Pechan's analysis indicated that (1) all Form Rs become Form A
eligible; and (2) more than four Form Rs become Form A eligible. The
review showed that EPA data-derived estimates match Pechan's estimates
for every zip code except 75207. In addition, EPA's data indicated that
zip code 35214 contained two fewer Form Rs eligible for Form A reporting
at both the 500 and 5,000 lb ARA thresholds. For zip codes 75207 and
35214, Pechan compared EPA estimates of the releases that would no
longer be reported at a 5,000 lb ARA to estimates Pechan derived from
the TRI database. A review of Pechan's TRI database for these zip codes
uncovered one or two Form Rs whose releases equal the zip code level
discrepancy between EPA's release estimate and Pechan's release
estimate. [For details, see tables and text on p. 8-10, Document Number
2330]

In regard to EPA’s estimations of data loss associated with increased
eligibility for PBTs, SBA wrote that Pechan's estimated percentage of
current Form R PRA waste that continues to be reported on Form R is
significantly higher than the value estimated by EPA (99.99 versus
99.0). EPA has reported this error in an email communication to the OA,
but has not yet corrected this error in the record to our knowledge.

New Jersey Department of Environmental Protection (NJDEP) wrote that
while EPA's proposal presents an assessment of impacts and data loss
based upon one year (2002), NJDEP looked at RPPR data for the last 10
reporting years (1995 - 2004) to get a sense of whether any one year is
representative of most, and found there is a demonstrated and
significant variability among the years. The number of facilities and
chemical reports that are submitted, as well as the quantities of
releases, on-site waste management, and off-site transfers of toxic
chemicals varies and there is no general trend to be discerned from
these data. This 10-year analysis reveals that existing data variability
combined with the proposed higher Form A threshold result in the real
probability of creating substantial gaps in release details for many
facilities and chemical-specific reports from year to year.

Response:

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

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

The Agency agrees with the commenter's statement that it is likely that
many of the facilities will continue to use Form R even if they are
eligible for Form A. The Agency also agrees that there is and likely
will continue to be variation in Form A usage and impact on a
year-to-year basis.

The Agency's estimate of zip codes that would have all Form Rs convert
to Form As is 665 under the proposal, not 1100 as stated by the State
Attorney’s General. The Agency disagrees with commenter that the
amount of non-PBT chemicals in affected zip codes would be impossible to
determine. First, Form A is a range report that represents quantities of
a non-PBT chemical has been released in a range of zero to 2000 pounds
and managed as waste in a range of zero to 5000 pounds.  For PBTs, Form
A represent zero releases and waste management in a range of zero to
500.  Second, if the facility has filed Form Rs previously, historic
release and transfer volumes for the chemical may provide additional
data that a community could reference. In the case of New Hampshire,
although the Agency has not completed a state-by-state analysis of Phase
II impacts, the Agency acknowledges that some states will be affected to
a greater extent than others.

The Agency acknowledges receiving this error report referred to by SBA
and has made the correction in the final EA.

For information about the extent of detailed Form R information that may
no longer be reported on Form R as a result of this rule, refer to the
economic analysis accompanying the rule.  The economic analyses for both
the proposed rule and the final rule have been placed in the docket for
this rulemaking.  This docket can be accessed at www.regulations.gov
under docket ID: TRI-2005-0073.  Those interested in performing
additional analysis related to this rule should consider utilizing
EPA’s Envirofacts (http://www.epa.gov/enviro/) and TRI Explorer
(http://www.epa.gov/triexplorer) databases as well as other EPA
resources.

5. Noncompliance with Executive Orders

Topic Comment Summary (by Abt):

Three unique comments representing four commenters stated that the
proposed rule is in noncompliance with executive orders (excluding EO
13045 and EO 12898).

The Society of Environmental Journalists wrote that as a "significant
regulatory action," the proposed rule is subject to formal OMB review,
and the Oct. 4 Notice states that "Changes made in response to OMB
suggestions or recommendations are documented in the docket to today's
proposal." Yet the Notice contains no specific citation of any document
in the docket detailing EPA's dialogue with OMB (other than reference in
the Economic Analysis to OMB-dictated burden estimates), and the Society
has been unable to find any such document in the docket. EO 12866 also
requires cost-benefit analyses, of course, which EPA in this case has
failed to perform.

The State Attorneys General of NY, CA, CT, IL, IA, MD, MA, NH, NJ, NM,
VT, WI wrote that the proposed rule does not constitute a “significant
regulatory action” under EO12866, as (1) the annual effect of the
rule, under EPA's own calculations, is only approximately $7.38 million,
and EPA does not suggest that the proposed rule would affect in a
material way, the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; (2) EPA identifies no
serious inconsistency or interference with action by any other agency;
(3) EPA identifies no impact on entitlements, grants, user fees, or loan
programs or the rights or obligations of their recipients; and (4) EPA
identifies no novel legal or policy issues. EPA cites no authority for
OMB review other than the executive order. Thus, in the absence of a
reasoned determination by EPA that the standard set out in the executive
order is met, and in the absence of any grounds for such a
determination, there was no legal authority for OMB review of this rule.

The States Attorneys General further state in regard to the Paperwork
Reduction Act that EPA appears to have made a mistake: this section of
the preamble refers to total burden reduction of 202,000 hours or $9.2
million, while section VA.2 of the preamble, and the chart contained
therein, refers to a total burden reduction of 164,000 hours or $7.4
million. EPA should correct or explain the discrepancy. In any event, as
set forth elsewhere in the comments from the State Attorneys General C
[see comments in outline topics II.1.D, VIII.1, VIII.1.A, VIII.1.C, and
VIII.7.A], EPA's burden reduction estimates overstate the actual burden
reduction impact of the proposed rule.

Two commenters believe that EPA is not in compliance with EO 13132 on
Federalism.

The State Attorneys General wrote that States rely on TRI data for a
variety of important purposes. Thus, contrary to EPA's conclusion, the
proposed rule would have a substantial direct effect on States because
it would interfere with their ability to rely on TRI as a comprehensive
source of data to analyze, legislate, regulate and undertake enforcement
with respect to hazards from toxic chemicals.

Under Executive Order 13132, Federalism, when a federal policy has a
substantial direct effect on the states, one of the fundamental
principles of federalism EPA is to apply is that "[p]olicies of the
national government should recognize the responsibilities of - and
should encourage opportunities for - individuals, families,
neighborhoods, local governments and private associations to achieve
their personal, social, and economic objectives through cooperative
effort."  The proposed rule is contrary to that principle, as it reduces
the ability of individuals and entities to achieve personal security and
environmental protection by reducing the amount of publicly available
information regarding toxic chemicals in their communities.

OMB Watch also disagrees with EPA's finding that the proposed rule will
not have a substantial impact on states. Specifically, EPA states in the
proposed rule; "the proposed rule that does not have federalism
implications. It will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132."

OMB Watch believes that EPA is incorrect. The rule changes would have
substantial direct effects on states in several obvious respects. Many
state programs depend directly upon TRI data. States across the country
use TRI-collected information for their own state programs to guide
pollution prevention efforts, inform enforcement priorities and address
environmental justice issues. If the changes go into effect, much of
this information will be lost, potentially endangering the effectiveness
of the state programs and, hence, the health and safety of citizens
across the country. According to OMB Watch's analysis, at least fifteen
states will loose critical numerical pollution data on more than 100
facilities, if EPA implements the changes to Form A reporting: [table
provided in submission, Document Number 4563].

OMB Watch stated EPA's claim that there will be no substantial direct
effect on states is in direct contradiction with the statements of
numerous state officials regarding the proposed TRI changes. Hence, in
order to abide by Executive Order 13132, a full and thorough process
needs to be developed to ensure input from state and local officials.

Response:

The Agency disagrees with the comment that it has failed to comply with
EO 12866 by not providing a cost-benefit analysis. The Agency has
considered both cost saving and impacts (lost benefits) of the Phase II
proposal and provided the analysis in the Economic Analysis which can be
found in the docket for this rule.  This docket can be accessed at
www.regulations.gov under docket ID: TRI-2005-0073.

EPA disagrees with the commenters because this rule raises novel legal
or policy issues.  Accordingly, EPA submitted this action and an
analysis of the potential costs and benefits associated with this action
to the Office of Management and Budget (OMB) for review under EO 12866.
Any changes made to the draft final rule in response to OMB
recommendations have been documented in the docket for this action.

With regard to the Paperwork Reduction Act, the Agency agrees that the
reference in the preamble to 202,000 hours of burden savings and $9.2
million of cost savings is a mistake. The correct estimates for cost and
burden savings provided in the economic analysis and Table 4 of the
preamble is 123,000 hours and $5.9 million.

EPA disagrees with the commenters that this rule is inconsistent with
the principles and procedures of EO 13132, which pertains to rulemakings
that have federalism implications. This rule does not have federalism
implications because this rule does not preempt State authority in data
collection of toxic chemical use nor impose substantial compliance costs
on the part of State governments. State governments are not TRI
respondents.  While EPA does expect some reduction in the amount of
detailed information available, this reduction will impact a fairly
small number of facilities with relatively low annual reportable amounts
and releases.   The information currently collected from Form R will be
replaced with information from a Form A range report and will indicate
what chemical was present and an upperbound quantity for both releases
and other waste management.  Therefore, EPA does not believe this rule