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The Emergency Planning
and Community Right-to-Know Act: Proposed Toxic Release Inventory -- COMMENTS OF The Society of the
Plastics OF COUNSEL: Jerome H. Heckman,
Esq. KELLER AND HECKMAN
The Society of the Plastics Industry, Inc. (SPI) is pleased to provide these comments in response to the U.S. Environmental Protection Agency's ("EPA" or "the Agency") proposed "Phase 3" expansion of the Emergency Planning and Community Right-to-Know Act's (EPCRA's) Toxic Release Inventory (TRI) reporting requirements to include chemical use or "materials accounting" data. A large number of SPI members are subject to EPCRA's TRI reporting system and thus will be significantly affected by this proposal. SPI is a 2,000 member not-for-profit trade organization representing all segments of the plastics industry in the United States. The Society's members include processors and manufacturers of plastics and plastics products, suppliers of raw materials, processors and converters of plastics resins and manufacturers of accessory equipment for the plastics industry. Its membership represents businesses of all sizes making an array of products, both industrial and consumer. The vast preponderance of its membership, however, is made up of smaller plastic producers; these comments will emphasize their special concerns. INTRODUCTION SPI supports the community right-to-know principle and the appropriate reporting of releases of toxic chemicals under EPCRA. EPA's TRI-Phase 3 (Phase 3) proposal, however, is an ill-conceived requirement which will burden businesses - particularly small businesses - without offering any significant benefits in terms of safe handling of chemicals or pollution prevention. Phase 3 would substantially increase the risk of loss or theft of proprietary trade secret and confidential business information (CBI) by domestic and international competitors. The proposal would also require the compilation and submission of detailed materials accounting data from those facilities, including small businesses, that can least afford it. And if these deficiencies are not enough, Phase 3 would also force businesses to report all over again information that is already in the hands of EPA and other federal agencies, solely because these agencies are apparently incapable of coordinating their existing databases, in apparent contradiction of efforts to "reinvent" government to work cheaper and smarter. Moreover, EPA has failed thus far to observe the regulatory process requirements of the Paperwork Reduction Act ( PRA), SBREFA, and the Unfunded Mandates Reform Act (UMRA). These "regulatory reform" laws are designed to ensure that any agency seeking to establish a new regulatory program has thoroughly analyzed the need for and practical utility of that program. EPA's failure to observe these requirements not only violates these laws, but strongly suggests that the Agency could not make the case for Phase 3 if the proposal were subject to a cost/benefit analysis. Finally, and perhaps most fundamentally, the Phase 3 proposal improperly attempts to circumvent the statutory limits of EPCRA and the Pollution Prevention Act of 1990 (PPA). Despite three Agency issue papers and numerous public meetings over four years, EPA is still unable to identify its statutory authority for Phase 3. Unless and until the Agency can do so, Phase 3 cannot satisfy the requirements of the Administrative Procedures Act (APA), and will not survive judicial review. Thus, as detailed below, SPI must oppose EPA's current Phase 3 proposal. It urges the Agency to withdraw Phase 3 and reevaluate the goals of EPCRA, the PPA and the TRI. If, however, EPA should choose to mon of SPI and many others, SPI calls on the Agency to immediately convene a review panel - as is required by the Small Business Regulatory Enforcement and Fairness Act (SBREFA) - to evaluate the potential impacts of the Phase 3 proposal on the small business community. Representatives from several SPI members have volunteered to testify before such a panel, or to participate in or chair any informal SBA panels addressing Phase 3. In addition, SPI would like to help arrange a meeting between representatives from its small business members and the Agency, in order to help ensure that small business concerns regarding Phase 3 are fairly and fully heard. SPECIFIC COMMENTS EPA's current Phase 3 proposal would drastically expand the plastics industry's EPCRA reporting burden. SPI believes such an expansion is unnecessary, inefficient and unauthorized. Its specific objections to the proposal are as follows: A. Loss of Confidential Business Information (CBI) Small businesses in the plastics industry typically cannot compete with larger companies on a volume or price basis. Instead, they rely on their ability to produce specialty materials using protected formulas and processes. After reviewing the Phase 3 proposal, Frank Pickering, President of SPI member Ershigs, Inc., believes that, "The proposed requirements have the potential to compromise the highly proprietary formulations used in the manufacture of our products. Our competitors would then have ready access to the information necessary to produce our product themselves." Similarly, Richard Morrison of Molded Fiber Glass Companies states that he is "extremely concerned that our competitors could obtain important confidential business information that would cause significant and irreparable harm to our company." Particularly for small businesses, if their production processes or trade secrets become known because a much wider range of raw material and throughput information is widely available to domestic and foreign competitors via Phase 3, their days in business may quite literally be numbered. This will result in a corresponding loss of jobs and community stability as well. While CBI loss is a major concern for small business, the Agency appears to have given little real consideration to this issue. EPA's recent "loss" of hundreds of documents designated as confidential by various chemical manufacturers raises serious concerns about the Agency's handling of CBI information. EPA has yet to offer, however, any proposal that comprehensively establishes how the Agency plans to ensure CBI protection in any of the Phase 3-related material the Agency has published thus far. If EPA is unable to ensure the confidential treatment of CBI documents, what is the likelihood that numerous local planning groups, 50 separate state agencies and EPA's various regional offices will be able to honor their commitments to protect this information? The answer is not encouraging, and the more agencies and individuals within those agencies that have access to CBI, the greater the risk that it will be lost. Since TRI information is designed to be publicly (and, now, electronically) disseminated, how will confidentiality be maintained in a universe of publicly accessible databases? Recent revelations at the Massachusetts Department of Environmental Protection (MADEP) raise serious concerns about the ability of state agencies to properly handle and protect CBI. MADEP staff mistakenly placed materials designated by Monsanto as CBI in publicly-available files, an error which was only discovered when a consultant reviewing the files notified Monsanto of the problem. Once lost, confidentiality can never be regained and, unfortunately, the loss of trade secret information is usually only discovered after the competitor has achieved the advantage. Under Phase 3, thousands of pages of new CBI would be submitted to the Agency. SPI is concerned that limited Agency resources will not be able to keep pace with the increased volume. EPA apparently intends to make Phase 3 data available to anyone over the Internet, vastly increasing the demand for CBI claims and the Agency resources needed to effectively protect this information. Similarly, SPI is concerned about EPA's recent pilot program allowing the distribution of confidential chemical manufacturing data collected under TSCA to state agencies, furthering increasing the risk of agency mismanagement of CBI. The White House Office of Science and Technology estimates that losses of trade secret information already cost U.S. businesses more than billions of dollars annually - even without the imposition of Phase 3's process level reporting. Privately commissioned studies clearly indicate that Phase 3-type information, when used in conjunction with other publicly available environmental data, can allow competitors to calculate market share and production output, estimate manufacturing efficiencies and costs, and even determine chemical composition via reverse engineering. The State Department and the Federal Bureau of Investigation have both expressed growing concern over this issue, and Congress has been moved to act as well, passing the Economic Espionage Act (EEA). Section 2 of the EEA - "Trade Secrets" - has direct bearing on the CBI/trade secret aspect of the Phase 3 proposal, and EPA will need to review whether the current form of the proposal can fully satisfy the EEA's requirements. The main beneficiary of EPA's proposal will be consultants who routinely comb through government information to gain intelligence about - and an economic advantage over - their competitors. This has been the case thus far in those states with materials accounting reporting requirements. While New Jersey does not keep records of who asks for its Phase 3-type data, and Massachusetts only instituted such a recordkeeping system after the discovery of its mishandling of Monsanto's CBI data, anecdotal evidence strongly suggests that a sizeable portion (and perhaps a majority) of those requesting access to Phase 3-type data are business competitors of reporting companies. As noted earlier, manufacturers, and especially small businesses, often go to extraordinary lengths to protect their production processes and product formulas. Phase 3 would force these companies to reveal these vital secrets, hampering their efforts to compete effectively while offering little increase in public health or safety in return. SPI believes that the Agency must begin to seriously address industry's concerns regarding industrial espionage before moving forward with this proposal. According to Alan Esche, Vice President of Chroma Corporation, "The reason we have been so successful in growing our business is because we solve customer problems with custom formulations. These proprietary formulations are the intellectual property that keep us competitive in the market place. This confidential business information is the only thing that allows us to compete against large multi-national and foreign competitors." As documented in a recent study, the type of data required under New Jersey's Phase 3-type program can provide competitors with a damaging level of production process details. Even the less extensive reporting requirements of the Massachusetts Toxic Use Reduction Act (TURA) program require the submission of "Shipped in or as Product" and "Byproduct" data which, in conjunction with "Manufacture", "Process" and "Use" information, will give experts in "competitive intelligence" from around the world access to a bonanza of production process information. This increases their ability to carry out reverse engineering studies and calculate previously protected production specifications. No other business community in the world is subject to the array of environmental permitting and other requirements which have so effectively improved environmental quality in the U.S., much less to such a stringent reporting regime, which will provide enhanced commercial details to competitors. At a time when global competitiveness is an ever-larger concern, the Agency must be all too aware of the potential exodus of American innovation to competitors worldwide via Phase 3's requirements. B. Compliance Costs Will Especially Burden Small Businesses It is impossible to quantify the costs that loss of CBI will have on affected companies. We do know, however, that if implemented as described, Phase 3 will significantly increase the reporting and recordkeeping burden on SPI's members, many of whom are small business owners ill-equipped to handle ever-increasing regulatory burdens. The ANPR will force small businesses to begin tracking, monitoring and calculating the quantities of Section 313 chemicals manufactured, used and consumed, the quantities shipped "as" or "in" end products, the quantities transported by shippers to and from the site, the substitution of raw materials within the production process; it will also require them to test for the potential exposure of site employees. Completion of the current TRI Form R can already take dozens and sometimes hundreds of worker hours. For facilities subject to the Massachusetts and New Jersey materials accounting reporting programs that serve as models for Phase 3, these figures are even higher. Though it was limited in scope by time constraints, a recent survey of affected SPI members in Massachusetts and New Jersey found that affected facilities spent between 2 and 8 hours per chemical - in addition to their federal TRI reporting obligations - to meet the requirements of these state programs. Moreover, these same facilities estimated that the additional cost of complying with these Phase 3-type state programs was between $1000 and $5000, again, on a per chemical basis. While these costs alone may seem small, they are multiplied for industries like the plastics industry that use multiple chemicals. Thomas Deller, President and CEO of OMEGA Polymer Technologies, Inc. is concerned that Phase 3 would "add significant administrative costs" to OMEGA's regulatory burden because of the "diversity of [their] processes and the large number of chemical raw materials in use." Materials accounting programs impose real costs on affected businesses, costs which are particularly burdensome to the smaller staffs and reduced resources of small businesses. According to Frank Pickering of Ershigs, Inc., the proposed Phase 3 requirements "have the potential to substantially impact our competitiveness in the international market." While most of the larger chemical companies often associated with "the plastics industry" have entire departments devoted to regulatory compliance, many of SPI's members have a limited number of employees trying to manage everything from production, maintenance and engineering to sales, marketing and regulatory compliance. It does not appear that EPA is fully aware of the time and resource restrictions that are a daily reality for smaller businesses. Each new regulatory requirement drains valuable resources from the production, research and development and marketing areas of the company that are vital to its survival, and every day lost to unneeded and duplicative reporting is a day not spent on product innovation. Adding new requirements like those of Phase 3 that force these businesses to calculate and account for the final disposition of every last pound of a chemical - even when it is completely consumed during the production process, as many plastic precursors are - would be extremely burdensome and time-consuming. The impact of each new layer of regulation is magnified at the small plastics processor level. The time and expense associated with the Phase 3 proposal could, without exaggeration, help put some small businesses out of business, even though they fully comply with existing mandates on reporting chemical releases and coordinate with local communities on emergency preparedness. The Agency has yet to address these and other issues specific to small businesses, including how the TRI Alternative Certification exemption for small emitters would relate to reports on materials shipped off-site "on" or "in" products. This is a particularly important issue for the plastics industry, as many precursor chemicals are fully reacted and consumed during the manufacture of a finished plastic product, and many materials (even those used in large amounts) are emitted or released in extremely small quantities, which would qualify affected facilities for this exemption. C "Gaps" Will Not Be Filled By This Data EPA attempts to justify its proposal by stating there are gaps in existing data. SPI believes that if there are indeed any data "gaps," they are products of poor data management by EPA and related agencies, not of any failure on the part of regulated businesses to provide information. As Robert DeRoma, Senior Vice President of Interplastic Corporation notes, "Currently emissions data reported in the TRI are determined by stack testing, emissions factors, or engineering estimations. All of these methods reflect usage without disclosing CBI." And according to Pasadena, Texas Local Emergency Planning Committee (LEPC) member Elizabeth Gonzalez at EPA's Baton Rouge public meeting, LEPCs already have the information they need to conduct effective emergency planning. The answer is not "more data," like the materials accounting data being sought here, but "better management" of what EPA, OSHA, DOT and state agencies already have in hand. In its 1990 review of materials accounting, Tracking Toxic Substances at Industrial Facilities: Engineering Mass Balance Versus Materials Accounting, the National Academy of Sciences concluded that materials accounting data could not serve as a verification system (i.e., ledger check) for TRI reporting. It reported that under New Jersey's program, materials accounting was only useful if used in conjunction with separate expert data. The NAS report also warned that the addition of materials accounting data to the TRI program could actually serve to mislead the public and regulatory agencies about chemicals used in various production processes, and that it is "generally inappropriate" for achieving the aims of Phase 3. EPA, however, continues to rely on materials accounting, disregarding scientific experts and the Agency's own reservations about its appropriateness for Phase 3. In fact, the Agency said in its own ANPR: "it is not yet clear to what extent the inaccuracies inherent in such [materials accounting] data may limit its usefulness." Not only would Phase 3 data fail to provide an accurate ledger check on current Form R submissions, but the level of detail it requires essentially duplicates current reporting requirements. A 1995 Research Triangle Institute review of materials accounting data concluded that: ...the fact that mean values for [nonproduct output] NPO- and use-based measures were of similar magnitude would seem to suggest that the NPO-based measures computable with current TRI data provide a reasonable proxy for the use-based measures using materials accounting. This assertion might also be supported by the fact that NPO- and use-based measures directionally agree over 70 percent of the time (our emphasis). The report goes on to conclude that: Even if materials accounting data were to be added to the TRI, however, a number of factors diminish [pollution prevention] P2 assessment capabilities at aggregate levels. These limitations may be related to a shortcoming in analytical methods or in the way toxic chemical data are used to understand environmental risks. . . This is hardly a ringing endorsement of Phase 3. On the contrary, in light of the costs that are so clearly associated with Phase 3, the conclusion of the Agency's own review team counsels for further research and a review of alternatives, rather than proceeding with a proposal that has so few distinguishing benefits. D. Better Management of Existing Data, Improving Agency Efficiency, Not New Reporting, Needed Phase 3 completely ignores the extensive - and expensive - system of EPA, Occupational Safety and Health Administration (OSHA), Food and Drug Administration (FDA) and Consumer Product Safety Commission (CPSC) provisions already in place devoted to risk reduction and employee and consumer protection. The health and safety concerns that purport to motivate Phase 3 are in large part already collected by EPA or are the province of other agencies under other statutes and regulations. Existing data collected under EPCRA Sections 311 and 312, OSHA's Material Safety Data Sheets, etc., adequately meet the needs of emergency personnel, but may be poorly organized and not generally accessible. Under EPCRA, for example, EPA already collects enormous amounts of information regarding chemical manufacture, process and use. These include reports to LEPCs of the maximum and average inventory amounts of each chemical onsite, their location within the facility, and significant changes in their production or use onsite (see EPCRA Sections 302-304, 311, and 312). Section 8 of the TRI form, authorized by the Pollution Prevention Act of 1990 (PPA), requires annual reporting of the quantities recycled, reused, burned for energy and disposed of offsite. Industry, however, should not be forced either to bear the cost of reorganizing this data or to submit redundant information under Phase 3, and EPA must better identify the need for these new requirements. E Failure to Perform Cost/Benefit Analysis or to Reflect "Regulatory Reform" Laws In this regard, EPA has failed to identify the program's constituency and its benefits. Who wants Phase 3? Why do they want it? What are their concerns? What information would they need to address these concerns? What benefits would they derive from the availability of this information? Is there a less costly approach? Unless and until EPA has answers to these questions, the Agency cannot conduct a rational cost/benefit analysis of Phase 3, cannot satisfy the cost/benefit provisions of recently-passed regulatory reform laws, and has no legal basis on which to advance this proposal. Who will actually use Phase 3 information? A 1994 George Washington University study revealed that 41% of LEPCs had not received a single public inquiry during the previous year. Almost half of those surveyed reported that their communities had expressed no interest in the TRI data already available to them, and only 25% of LEPCs the had received more than six inquiries. This type of very limited data traffic indicates that despite a right to know, most citizens do not make use of that right, and justifiably rely on federal and state authorities to protect their health and the environment while promoting sustained economic growth. Until EPA takes the time to investigate and understand the current citizen demand (or lack thereof) for TRI data, as well as its usefulness to communities' residents, imposing the costs and risks associated with Phase 3 on American business seems more than a little premature. In contrast to its purported benefits, then, at least some of the costs and risks associated with the Phase 3 proposal are quite identifiable, easily quantifiable and substantial. Phase 3 clearly imposes testing, monitoring, recordkeeping and reporting costs on affected businesses. Many larger companies estimate that it would cost their facilities $500,000 simply to comply with the paperwork burden of Phase 3 in its first year, and approximately $200,000 for each subsequent year. These extra costs burden small businesses most. Phase 3 would also quite clearly increase the probable loss of CBI and trade secrets through Agency mismanagement, losses that will result in incalculable costs to those companies. And, it will make it far easier for competitors to ascertain the formulas and operating specifications that are the lifeblood of small businesses in the American plastics industry. Given that much of the data sought by Phase 3 is apparently already available to ng businesses to report it all over again does not appear to be the most efficient or equitable means of addressing appropriately justified right to know concerns. The need for agencies to weigh the costs and benefits of proposed regulations has been codified in many areas. These include President Clinton's Executive Order (E.O.) 12866, the Paperwork Reduction Act of 1995 (PRA), the Unfunded Mandates Reform Act of 1995 (UMRA), the Regulatory Flexibility Act of 1980 (RFA), and the recently-passed Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). At their core, these laws formalize the need for responsive, cost-efficient government actions, preceded by transparent, rational cost/benefit analyses. President Clinton's E.O. 12866 includes a "Statement of Regulatory Philosophy and Principles" to guide all federal agencies in the performance of their duties. Among these principles are:
E.O. 12866 also directs agencies to adhere to 14 "Principles of Regulation" when taking regulatory actions. These principles include a clear identification of the problem to be addressed, a consideration of private sector mechanisms, a prioritization of risks, an analysis of the proposal's cost-effectiveness, the avoidance of duplicative or inconsistent regulations, and a reasoned explanation of the proposal's cost/benefit assessment. To SPI's knowledge, EPA has thus far failed to abide by any of the principles noted above in its handling of the Phase 3 proposal. PRA requires an OMB review of the "practical utility" of data sought by an agency's regulations. If the data request cannot meet this practical utility requirement, OMB is not authorized to approve the regulation. PRA also requires an agency to demonstrate that a proposed program is necessary to achieve a "programmatic need," and that it is not unnecessarily duplicative of information already available to the agency. SPI respectfully contends that until EPA and other agencies review their management of the TRI-related data they already collect, EPA cannot rationally evaluate whether Phase 3 satisfies the PRA's requirements. Section 202 of UMRA requires an agency to transmit a statement to the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) demonstrating its compliance with Section 202's 11 requirements - including a chemical-by-chemical, qualitative and quantitative cost/benefit analysis of the proposal's effects on the environment, the private sector and local governments - prior to the issuance of a notice of proposed rulemaking. Under Section 203, an agency must establish a plan for informing and educating small governments of the effects of the proposed plan. To SPI's knowledge, EPA has thus far failed to conduct either the cost/benefit analysis or plan development required under UMRA. RFA requires an agency to identify the factual and legal basis for a proposed rule, its proposed recordkeeping/reporting requirements, any duplicative or overlapping rules and significant alternatives to the proposal. It must also identify the small entities that will be affected by the proposal, the skills it will require of them, and determine whether the proposal will have a significant impact on these small entities. The agency must then publish this initial regulatory flexibility analysis in the Federal Register and transmit it to the Chief Counsel for Advocacy of the Small Business Administration (SBA). If and when the agency promulgates a final rule version of the proposal, it must also prepare a final regulatory flexibility analysis. EPA has apparently not addressed these requirements. Similarly, SBREFA requires an agency to supply the SBA Chief Counsel with data on the potential impacts of the proposal on small business, prior to completion of the agency's initial regulatory flexibility analysis. The agency must also convene a review panel, which is charged with reviewing the comments of small business representatives selected by the SBA, and make modifications to the proposal based on the review panel's report. EPA has yet to satisfy any of SBREFA's requirements with regard to its Phase 3 proposal. To satisfy the spirit of SBREFA, SPI urges EPA to convene a review panel now to consider these concerns. EPA has failed to adequately articulate the benefits of, need for, and constituency of the Phase 3 proposal. The benefits are thus left unidentified and unquantified, but the costs and risks of Phase 3 are very real. Moreover, its impact will be felt most keenly by the smallest businesses. How can EPA justify Phase 3's costs and risks when the actual goals of EPCRA - emergency planning and community right to know - are, according to experts, already being met? If new needs exist, EPA must assess whether they can be met by organizing the data it already has in its files. A commitment to regulatory efficiency should include, at the very least, a commitment not to impose duplicative costs and burdens on industry. F. Market Forces and Other Environmental Requirements Adequately Achieve Pollution Prevention Goals Part of the cost/benefit analysis required under the regulatory reform laws is an analysis of whether the private sector can achieve the goals of a proposal as or more efficiently than the proposed government action. SPI urges EPA not to continue to ignore the very real power of the marketplace. The costs associated with toxic waste treatment and disposal are a much stronger and more effective incentive to source reduction - where technically and economically feasible - than any regulatory program. More stringent water and air quality regulations, and associated permit fees, provide further incentives to reduce or eliminate releases to these media. Responding to pressures from existing environmental statutes, the free market continues to spur successful source reduction/pollution prevention efforts, making Phase 3 an unnecessary regulatory burden directly contrary to the spirit of President Clinton's "regulatory reinvention" initiative. G. "Use" Does Not Equal "Risk" The Phase 3 proposal also rests on fundamentally flawed logic. Chemical use does not correlate well with either "exposure" or "risk." Equating "use" with "harm" is inaccurate and misleading. SPI is concerned that agencies and professional environmental organizations will - intentionally or unintentionally - misuse TRI data, thereby fostering public misperception of the risks and benefits inherent to the manufacture or use of any substance. As proposed, Phase 3 will only provide raw data on the amount of chemicals used at a facility, without any effort to explain their value in terms of the end products they make possible, the relationship between chemical use, release, risk and human exposure, or the handling safeguards employed to protect workers and surrounding communities. It will likely lead to decisions about products being based more on conjecture and uninformed perception than a fundamental understanding of chemistry and sound risk assessment principles. SPI believes that educating the public about risk assessment and risk management is an essential but missing part of EPA's TRI program. SPI would also like to emphasize the difference between "pollution prevention/risk reduction" - which it strongly supports - and "chemical use reduction" - which it believes is in and of itself an inappropriate goal that fails to consider how and why chemicals are used. Some of those involved in this issue appear wedded to a "Just say no" approach to all chemicals, despite the fact that they themselves enjoy their benefits every day, and have done little, if any, research into whether these same products that make their lives safer (like medical devices or protective food packaging), more convenient (like many light-weight plastics containers), or which offer environmental benefits (like energy-efficient plastic insulation or plastic components in cars and trucks) can be made with alternatives. Often, there are no practical or economical alternatives to the TRI chemicals used in current production processes that can result in end products offering identical or improved performance. Ending or significantly reducing their use is simply not necessary or feasible at this time. For example, certain types of chemicals are the basic building blocks for plastic resins that are then used to make a myriad of other products. Other chemicals are essential to achieving a certain performance characteristic in end products. Alternatives not on the TRI may not exist at all, or, if they do, may not offer the same level of performance, protection or reliability in the end product as the existing chemical. SPI is therefore pleased that EPA plans to reassess the status of roughly half of the chemical listings on the TRI. Indeed, many chemicals should be reevaluated to determine whether their toxicological profiles or extractable level of toxic emissions actually justify their inclusion on the list. In this regard, SPI has petitioned the Agency to remove polymeric diphenyl methane diisocyanate (PMDI) from the TRI list, as it should never have been listed. It is, however, discouraging that SPI's petition to delist PMDI, filed in August 1995, has not been acted on by EPA, despite the fact that the statutory timeframe for action has long passed. Despite the rhetoric and promises to reevaluate, SPI's experience has been that the Agency is committed to expanding reporting obligations, not to taking a hard look at the purpose and intent of TRI listings, and the extent to which requiring reporting of chemicals emitted in very small quantities compared to the volume used makes sense. Given the uncertainty over the status of these chemicals, it would be both wiser and more efficient to develop an accurate method of determining which chemicals are to be regulated before requiring their manufacturers, processors and users to generate the detailed information contemplated by Phase 3. The Agency could use its resources to reevaluate chemicals currently listed on the TRI, and to inform members of the public about the interplay between toxicity, use, exposure and risk. Regrettably, at this time, the Agency appears committed solely to collecting "more" data, without regard to its utility, existing reporting requirements of EPA and other agencies, or the costs associated with both its collection and public distribution. H. EPA Lacks Statutory Authority to Proceed
The purpose of EPCRA is "emergency planning" and "community-right-to-know." Similarly, the PPA is designed to encourage source reduction efforts in manufacturing. The collection of data contemplated by Phase 3 - chemicals contained in a product, production line process specifications, transported to and from a facility, and demographic data on the workers within a facility - is not authorized by either statute, and will not advance their statutory objectives. The failed effort by members of the 102nd Congress to pass a "Right to Know More" bill clearly illustrates that EPA is not currently authorized to collect materials accounting information. Representative Gerry Sikorski (D-NJ) and Senator Frank Lautenberg (D-NJ) introduced companion bills (H.R. 2880 and S.2123, respectively), referred to as the "Right to Know More" acts. Neither bill was passed by that Congress. S.2123 contained language authorizing EPA to collect "mass accounting" data, including information on "quantities produced, used, generated as by-product, consumed, recycled onsite . . . transferred as product, or transferred as constituents in products;" exactly the kind of information contemplated by Phase 3. Similarly, the introduction in 1996 by Representatives Pallone, Andrews, Torricelli and Markey of H.R. 4234, the "Public Right-To-Know and Children's Environmental Health Protection Act," which would have provided EPA with the statutory authority to promulgate Phase 3, make it abundantly clear that EPA does not now have the authority to do so. I. Alternatives to Phase 3 Exist In one sense, what is most distressing to SPI is the apparent failure by EPA and other agencies to consider alternatives to the costly requirements of Phase 3. SPI and the plastics industry firmly support the fundamental goals of the TRI program. Local citizens have a right to know the identities and quantities of TRI-listed chemicals being released into their communities, and industry has a duty to provide that information, assuming, of course, that the TRI list has been revised so that it contains only those chemicals that truly pose significant risks to human health or the environment. It appears to SPI, however, that there are more efficient, more responsive, less risky and less costly means of achieving that end, one that will not so broadly risk compromising confidential business information. At its core, EPCRA's TRI is a "local" program. Its focus is those residents who share their neighborhood with a local TRI facility. As has been pointed out by many commentators, EPA's management of TRI data as a national database actually impedes this focus in some ways. For example, it takes almost two years for TRI data to get from the reporting facility through EPA to local residents. It appears that local residents might be better served by gaining access to this data more quickly, e.g., through a data management system such as the "Local Risk Model" proposed by the National Environmental Policy Institute (NEPI). This would focus on delivering existing data reported under EPCRA Sections 311 - 313 directly to each local community from each local TRI facility. While Phase 3 will certainly generate more paperwork, it appears unlikely to provide "better" information than what is already available. After concluding its review of the Phase 3 proposal, the American Institute of Chemical Engineers (AIChE) concluded that "requiring and publicly reporting chemical use information as part of TRI or TSCA would not advance the goal of pollution prevention." Logically, current laws which require reporting of releases of chemicals, not a scheme where chemical "use" in products is reported, best advances pollution prevention goals. While it agreed that materials accounting has been implemented successfully by some facilities, the AIChE found that Phase 3-type programs "focus on use rather than risk, would not be reliable, would tend to mislead the public, would be difficult and costly to collect and analyze, and would jeopardize confidential business information." AIChE's recommended alternatives to Phase 3 included better utilization of the EPCRA Section 312 Tier II data already reported to LEPCs and development of a graduated TRI toxicity rating system, to better assess and communicate risk rather than simply use or presence. Echoing the recommendations of LEPC members, NEPI and many others, the AIChE has also concluded that the data that LEPCs already collect and manage under Sections 311 and 312 of EPCRA would actually provide a better (and more cost-efficient) method of providing the data sought by Phase 3. EPA's recent Information Collection Request, which thoroughly reviews the abundance of information already collected and available to the public under EPCRA, supports this same conclusion. SPI suggests that EPA redirect its efforts and use Phase 3 as an opportunity to refocus on EPCRA's primary goal: the community's right to know about actual or potential releases of toxic chemicals into the environment in order to maintain a community's public health and safety. What are communities' concerns? What data do they want access to and how would they like it delivered? SPI believes that asking these questions should be a prerequisite to any further action on Phase 3. Such an inquiry would also need to address both the potential costs and risks of Phase 3, as well as its potential benefits, in order to accurately assess the need for the program. As stated previously, unless and until EPA conducts such research, how can it accurately assess the costs and benefits of this proposal? In lieu of the Agency's current proposal, SPI urges EPA to investigate the possibility of centralizing and organizing existing TRI data and other information (moving toward "one-stop" reporting) in order to avoid the redundant reporting contemplated under Phase 3, while maintaining CBI protections. This would be consistent with the Agency's other ongoing regulatory reform efforts (e.g., Common Sense Initiative, Project XL), would spare the business community a tremendous amount of time and expense, protect vital trade secret information and provide local communities with the information they have a right to - information that EPA and other agencies already hold in their hands. CONCLUSION
The numerous costs and risks of the Phase 3 proposal are simply not balanced by any real, defined benefits or need. SPI urges the Agency to take a step back from the process and review the goals of EPCRA and, most importantly, the needs of community members. Most if not all of the information sought by Phase 3 would be available to communities today if EPA and other agencies would simply take the time to reorganize and improve their data management and distribution systems. For these and the foregoing reasons, SPI strongly urges EPA to discontinue its proposed "Phase 3" expansion of EPCRA's TRI reporting requirements and urges the Agency to adopt the recommendations stated herein. Respectfully submitted, Maureen Healey Of Counsel: Keller and Heckman More
Public Policy: Environment
. Worker Safety . Transportation
. Codes and Standards . Food,
Drug,and Cosmetic Packaging . International
Trade
. Other Issues
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 © Copyright 2003 The Society of the Plastics Industry.
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