Toxic Chemical Release Reporting; Community Right-to-Know; Notice of On-line Dialogue

Option 4: Creating a New, ?No Significant Change? Certification Statement EPA has indicated that one option for burden reduction is to create a new ?no significant change? certification statement. Although ACC still believes that alternative year reporting (considered in more detail below) would confer substantially greater burden reduction benefits, there are some circumstances in which ACC believes a ?no significant change? certification could be useful. If the new certification statement relies on a determination of a specific percentage change in total releases or a specific percentage change in total quantity managed as waste, the certification would likely be of limited use. Under these scenarios, facilities would still find it necessary to conduct the burdensome analysis to know what releases or wastes were present in order to determine and document their eligibility to use the ?no significant change? form. Alternatively, if the new certification were based on a specific percentage change in total production associated with a particular chemical, it might be somewhat less burdensome, depending on the number of processes in which the chemical is used. For chemicals used in numerous processes, it may be easier to continue to use the current data collection methodology. There is one scenario in which the new certification might provide significant burden reduction. If the certification were based on qualitative criteria (such as no significant change in material inputs, production processes, pollution prevention and waste handling or management practices) and the filing decision could be made at the process level based on knowledge of the process, facilities might well make substantial use of a ?no significant change? report. This approach would require that facilities establish a baseline year, such as the last reported calendar year data before the option becomes available. option 4

ACC encourages EPA to consider the need for flexibility in the eligibility criteria for a ?no significant change? report. For example, allowing facilities to choose one of the following criteria to make its demonstration would result in a flexible program that many reporters might be able to adopt: -Total production has not changed more than x% (10% or more); or -Material inputs have not changed more than x%; or -Quantity of waste containing the chemical has not changed more than x%. Another alternative EPA should consider for determining no significant change eligibility is the use of production ratios or activities indices. For example, a production ratio between 0.9 and 1.1 would mean that a facility?s relevant variables were within a 10% allowable change range. This approach could provide a simple, effective measure for facilities to determine their eligibility to use a ?no significant change? form. Further, EPA should not use a specified absolute quantity, such as production volume alone, as an eligibility criterion. For example, assume there is total production of 5 million pounds at one facility and 5,000 pounds at another. Assuming the ?no significant change? threshold was set at 1,000 pounds, the first producer would have a significant change threshold of 0.02%, while the second would have an effective change threshold of 20%. A more equitable basis for a no significant change threshold is on a percentage rather than volume basis. EPA should also understand that the TRI-Made Easy (TRI-ME) software would not be a significant factor in making the determination that no significant change had occurred. Typically, TRI-ME serves only as a means of inputting data for reporting purposes once data collection and analysis is complete. Further, many ACC members use one or more spreadsheets for their data collection activities, which generally cannot simply be transferred to TRI-ME. option 4

Option 5: Use of Range Reporting for Section 8 of the Form R ACC supports the use of range reporting for Section 8 of Form R. For consistency, EPA should harmonize its range reporting so that if range reporting is used in Sections 5 and 6, it can also be used in Section 8. Currently, there is no real benefit in using range reporting in Sections 5 and 6 of Form R, because the reporter must still have an actual number for Section 8. option 5

The American Chemistry Council (?ACC? or ?Council?) submits the following comments on Phase II of EPA?s national Stakeholder Dialogue on the Toxics Release Inventory (TRI). These comments have also been submitted in a consolidated document emailed to the OEI docket. Option 1: Higher Reporting Thresholds for Small Business EPA has requested comment on higher reporting thresholds for small businesses, and how small businesses should be identified for the purposes of this burden reduction measure. In considering burden reduction measures, EPA should consider that small facilities in general need relief, whether or not they are part of a larger parent company. EPA may be under the impression that small facilities in larger parent companies do not have the responsibility for data collection and analysis. In ACC?s experience, however, even small facilities in larger organizations must use their own limited resources to collect data and report under the TRI program ? and it is in data collection and assessment that the greater part of the TRI burden lies. Moreover, it is apparent that facilities otherwise qualifying as small businesses can nevertheless have significant releases or other waste management quantities compared to facilities belonging to large companies. ACC recommends that EPA focus its burden reduction measures on facilities that do not have large releases or waste management quantities by raising the threshold for manufacture, process and otherwise use (MPU) activities, and by creating appropriate exemptions for facilities that report zero releases. These approaches would assure that burden reduction is targeted at the facilities that do not make a significant contribution to reported TRI releases. ACC provides further justification for these approaches in the discussion on Option #2, below. option 1

There are several reasons why Form A is ?underutilized,? and these reasons should be recognized by the Agency. First, Form A provides little real reduction in burden. The regulated community has over a decade of experience with the TRI program, and they fully understand that Form A is an option. Form A is not used because the fact remains that filling out the form (whether it is Form A or Form R) is a small part of the overall TRI burden. The burden of the TRI program lies in gathering and analyzing data ? and that burden is little reduced by the opportunity to file Form A. Second, Form A is little used because it provides no enforcement protection to reporters. Form A is considered to be a ?non-report? for enforcement purposes if a facility later determines that a Form R should have been filed, whereas Form R provides important protection to a facility in a subsequent enforcement proceeding. For these, many companies have a general policy of not submitting Form A's. Because any given facility must conduct a burdensome MPU analysis for each chemical regardless of the Form to be filed, and there is significant enforcement vulnerability related to filing a Form A, there is little additional value or incentive to use Form A instead of Form R. option 3

D. Evaluate Non-Statutory Data Elements in Form R EPA should also consider what data elements in Form R are not required under Section 313(g) of EPCRA. These non-statutory data elements add a considerable burden to the overall TRI reporting effort. In ACC?s September 1999 burden reduction options paper, we identified thirteen data elements not required under EPCRA or the Pollution Prevention Act. ACC strongly recommends that EPA take steps to evaluate whether the non-statutory data elements are indeed required for an effective TRI database, and what steps might be taken to ease the burden of collecting such data. Any non-statutory data elements that have not contributed significantly to how the TRI data has been used should be eliminated unless there is a cost/benefit analysis that demonstrates that their continued collection is clearly justified. option 6

The overwhelming benefit of alternate year reporting is that it has the potential to immediately reduce the burden of TRI reporting by 50%, with little loss in usable information in the TRI database. Unfortunately, EPA?s Phase II White Paper contained no analysis of the potential impact of alternate year reporting, other than noting that the Agency believes ?the ?no significant change? option . . . may be a better way of providing a similar form of burden reduction.? This summary statement of the Agency?s view of alternate year reporting provides little basis for appropriate public comment in the Phase II dialogue, and provides little clarification of the Agency?s apparent objections to a biennial reporting schedule. C. Revisions in EPA Guidance Documents Whenever the Agency updates a guidance document, the revised text should be highlighted and the date associated with the document should be changed and should be referred to as a revision date. The reporting community?s real problem, however, is when the revisions result in a new interpretation of an existing issue. Sometimes the new interpretations come in the form of a revised question and answer (Q&A), where the question remains the same but the answer is completely different. Frequently, the changes impact how facilities report, yet do not afford an opportunity for notice and comment. Facilities are then faced with the dilemma of whether or not to amend a prior year?s submission based on the new interpretation. In brief, the Agency could avoid imposing added burdens by assuring that guidance reflecting a policy change is subject to notice and comment. option 6

Option 3: Expanding Eligibility for the Form A Certification Statement Although initially attractive as a means of reducing the overall TRI reporting burden, ACC believes that few reporters would take advantage of an expanded opportunity to use Form A. There is no significant reduction in burden associated with filing Form A versus Form R, because most of the burden of the TRI program is in the determination of whether or not a facility exceeds reporting thresholds and if so, in determining the various reportable quantities. A facility must make these determinations regardless of whether or not a Form A or Form R will be filed. Increasing the threshold or modifying the annual reportable amount criteria would not significantly affect the burden of determining eligibility. EPA?s suggestion to only include releases, and no other waste management activities, in the annual reportable amount that must be considered for Form A eligibility may have some merit as a means of encouraging the use of Form A. Although EPA has indicated some concern that this approach would affect facility choices regarding waste generation and management, ACC submits that few if any facilities make waste generation or management choices based on which TRI Form it would be eligible to use. ACC has also encouraged EPA to adopt a 1,000-pound release (on-site releases plus off-site transfers for disposal) and 10 million pound MPU threshold to replace the current Form A thresholds. This approach would meet EPA?s goal of reducing the cost and burden of collecting TRI information while maintaining some useful information on low-level releases, using the Form A process. option 3

C. Complete the Review of TRI Chemicals Against the Statutory Criteria Some years ago, representatives of EPA?s TRI Branch indicated to ACC members that a review of the original TRI chemical list against the statutory criteria was well underway. It is not clear whether the review has ever been completed. In the meantime, it appears that EPA has taken the position that no chemical should be removed from the list until the entire review is complete. Completing the review may avoid the need for threshold changes altogether, at least for some chemicals. EPA could achieve at least some measure of burden reduction by assuring that the chemicals on the TRI list in fact meet the listing criteria of Section 313. At present, some unknown number of chemicals should probably be removed from the TRI list, yet their continued presence on the list creates a significant reporting burden for the regulated community. ACC recommends that EPA proceed quickly to remove those chemicals for which reviews against the statutory criteria have been completed, and accelerate its review of the remaining chemicals. D. Higher Thresholds for Certain Facilities/Chemicals ACC believes that the option of establishing higher thresholds for certain facilities or chemicals has some merit, particularly if implemented in conjunction with the measures noted above. ACC presumes that any modified threshold would still have the effect of reporting a ?substantial majority? of releases, as required by the Emergency Planning and Community Right to Know Act (EPCRA). option 2

Option 6: Other Options for Burden Reduction ACC believes that EPA should consider several other options in considering TRI burden reduction measures. A. Zero-Release Exemption As discussed earlier in these comments, facilities reporting zero release for a chemical should not have to continue reporting year after year. In ACC?s view, it is highly unlikely that there are high volumes of waste generation/management in those cases where there are zero reported releases. B. Alternate Year Reporting ACC first suggested alternate year reporting to EPA in its September, 1999 submission to the Agency on burden reduction options. In ACC?s view, alternate year reporting would provide much greater burden reduction than the ?no significant change? option. The alternate year reporting would impose no burden whatsoever one year out of every two, but the ?no significant change? option would require reporters to incur substantial burden each year, as facilities would need to collect the data to determine if there was ?no significant change? and to ensure that any qualitative criteria were met and documented. ACC?s 1999 suggestion included the possibility of having facilities in some SIC codes report in one year, and the remaining SIC codes designated for reporting in the following year, so that approximately half of the reporting community would submit Form Rs in any one year. Section 313(i) of EPCRA provides the Agency explicit authority to modify the reporting frequency for TRI reports, and there should be no legal impediment to adopting a biennial reporting schedule. In ACC?s view, this approach would also mean that EPA and its contractors would handle substantially less data and provide time to conduct additional analysis of the reported information. option 6

option 1 and option 2 and option 3 and option 4 and option 5 and option 6

option 1 and option 2 and option 3 and option 4 and option 5 and option 6

Option 2: Higher Reporting Thresholds for a Category of Facilities or Class of Chemicals with Small Reportable Amounts A. Remove No or Low Reported Chemicals from the TRI List As a first step, EPA could reduce the analytical burden associated with establishing whether or not the TRI thresholds have been met by removing no or low-reported chemicals from the TRI list. An analysis of the TRI database indicates that there are 55 chemicals on the TRI list for which there are no reported on-site or off-site releases. In addition, 19 chemicals on the TRI list have reported on-site and off-site releases between 1 and 10 lbs, with another 21 chemicals reported to have between 11 and 93 pounds total releases. In short, some 95 chemicals on the TRI list have less than 100 pounds of total on-site and off-site releases. Unless these chemicals are known to be extremely toxic, they should be able to be removed from the list of TRI chemicals with no adverse impact on the TRI database. Alternatively, EPA should consider raising the reporting threshold for these chemicals to reduce the burden associated with reporting such small quantities. B. Exempt Facilities with Zero Reportable Releases and No Significant MPU Changes As noted above, there are approximately 100 chemicals with zero reported releases or very low releases, across all reporting industries. EPA could also consider exempting facilities that have had zero/low releases for a given period of time and no significant MPU change within the last year (based on process knowledge). This approach would have the effect of exempting particular facilities from a TRI reporting obligation until such time as MPU changes create the potential for meeting the reporting threshold. option 2

Filed on regulations.gov — full text not in the inline record.