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Addition of Reporting Elements; Toxic Chemical Release Reporting; Community Right-to-Know
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 1, 1996 (Volume 61, Number 191)]
[Proposed Rules]
[Page 51321-51330]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 51322]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[OPPTS-400106; FRL-5387-6]
Addition of Reporting Elements; Toxic Chemical Release Reporting;
Community Right-to-Know
AGENCY: Environmental Protection Agency (EPA).
ACTION: Advance Notice of Proposed Rulemaking (ANPR).
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SUMMARY: EPA intends to expand its Community Right-to-Know initiatives
to increase the information available to the public on chemical use.
This Advance Notice of Proposed Rulemaking is intended to give notice
of EPA's consideration of this issue and to solicit comments on all
aspects of chemical use and the collection of chemical use data and is
an initial step in the regulatory development process. In the context
of this action, EPA is considering all potential components of
``chemical use.'' For the purposes of this Notice, the term ``chemical
use'' refers to the information most commonly described as materials
accounting data: amounts of a toxic chemical coming into a facility,
amounts transformed into products and wastes, and the resulting amounts
leaving the facility site. EPA believes that the collection of
additional chemical use information beyond that already provided by the
Toxic Release Inventory (TRI) data base would provide a more detailed
and comprehensive picture to the public about environmental performance
and about toxic chemicals in communities. TRI is the data base in which
information collected under section 313 of the Emergency Planning and
Community Right-to-Know Act (EPCRA) and section 6607 of the Pollution
Prevention Act (PPA) is made available. EPA is considering expanding
the type of information contained in this data base. A number of
important concerns associated with the reporting and interpretation of
chemical use information have been raised to the Agency, and EPA has
determined that additional evaluation is needed before EPA can develop
a proposal. In this ANPR, EPA is (1) Describing the Agency's plans to
further evaluate these issues; (2) providing preliminary notice of
additional public meetings; (3) requesting comment and information on
issues where additional assessment is needed; (4) soliciting actual
assessments that have been performed on these issues and (5) seeking
public input concerning development of regulation in this area.
DATES: Written and electronic comments in response to this ANPR must be
received on or before December 30, 1996.
ADDRESSES: Written comments should be submitted in triplicate to: OPPT
Docket Clerk, TSCA Document Receipt Office (7407), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, Rm. E-G099, 401
M St., SW., Washington, DC 20460. Comments containing information
claimed as confidential must be clearly marked as confidential business
information (CBI). If CBI is claimed, three additional sanitized copies
must also be submitted. Nonconfidential versions of comments will be
placed in the record for this action and will be available for public
inspection. Comments should include the docket control number for this
ANPR, OPPTS-400106 and the EPA contact. Unit IV. of this document
contains additional information on submitting comments containing
information claimed as CBI.
Comments and data may also be submitted electronically by sending
electronic mail (e-mail) to: oppt.ncic@epamail.epa.gov. Electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Comments and data will also be
accepted on disks in WordPerfect 5.1 file format or ASCII file format.
All comments and data in electronic form must be identified by the
docket number OPPTS-400106. No CBI should be submitted through e-mail.
Electronic comments on this ANPR may be filed online at many Federal
Depository Libraries. Additional information on electronic submissions
can be found in Unit IV. of this document.
FOR FURTHER INFORMATION CONTACT: Matt Gillen at 202-260-1801, e-mail:
gillen.matthew@epamail.epa.gov; or Christine Lottes at 202-260-7258, email:
lottes.christine@epamail.epa.gov for specific information
regarding this ANPR. For further information on EPCRA section 313
contact the Emergency Planning and Community Right-to-Know Hotline,
Environmental Protection Agency, Mail Stop 5101, 401 M St., SW.,
Washington, DC 20460. Toll free: 1-800-535-0202, in Virginia and
Alaska: 703-412-9877 or Toll free TDD: 800-553-7672.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Background
EPA considers Right-to-Know to be among its most effective
strategies for improving environmental performance. Facilities
currently covered by the TRI have reduced their reported releases of
toxic chemicals by 44 percent, or 1.6 billion pounds, since 1988. These
reductions have been attributed to voluntary industry action motivated
by a number of factors including: (1) The availability of TRI data for
release and transfers of covered chemicals; (2) public involvement in
facility and community planning; (3) flexibility in choosing reduction
methods; and (4) transparency of facility performance. In the Federal
Register of November 30, 1994 (59 FR 61432) (FRL-4922-2), EPA issued a
final rule that expanded the chemical coverage of TRI to include 286
additional toxic chemicals; and in the Federal Register of June 27,
1996 (61 FR 33588) (FRL-5379-3), EPA proposed adding an additional
seven industrial sectors to TRI. The Agency's commitment to expanding
the TRI and the Right-to-Know Program is premised on its effectiveness
as a tool to encourage pollution prevention, improved environmental
quality, informed public involvement and public awareness of toxic
chemicals that move to and through their communities.
The TRI-Phase 3 project builds on two successful strategies:
Pollution Prevention and Community Right-to-Know. [In this ANPR, the
title ``TRI-Phase 3'' is used to designate the entire chemical use
right-to-know project. The ``TRI'' is retained in recognition that the
project arose out of a TRI background, even though EPA is currently
considering use of non-TRI statutory authorities.] Pollution prevention
provides the framework for identifying opportunities to reduce
pollution at the source through cost effective changes in production,
operation, and raw materials use. It encourages companies to consider
opportunities for source reduction as the preferred route to improved
environmental performance. Community Right-to-Know provides the
framework for informing and educating citizens so that they can
participate more effectively in decisions that affect their families
and communities. Community Right-to-Know is increasingly recognized as
an essential decisionmaking tool for both the public and industry.
Public information fosters informed environmental involvement by many
different segments of society, from citizens and consumers to corporate
decisionmakers. Expanding public participation motivates improved
environmental performance, and over the long term promotes the
integration of environmental goals with economic and social goals. In
addition to these
[[Page 51323]]
benefits, EPA believes that materials accounting has the potential to
significantly increase the utility and completeness of data that would
be available to identify, evaluate, and track toxic chemicals in the
workplace and community. This is important because it is at the
community level where environmental problems can first be identified,
and where the groups with the most at stake can come together to
develop solutions to best fit local needs.
EPA believes that publicly available chemical use information shows
promise for filling a number of data gaps identified by TRI
stakeholders and that it could link together pollution prevention and
Community Right-to-Know. Chemical use information could expand the
public's ability to evaluate a range of national and community level
environmental issues. Some stakeholders suggest that chemical use data
may be used to assess the amounts of chemicals flowing into and through
communities, the overall quantities of toxics going into products,
worker safety and health issues, and facility pollution prevention
performance. Chemical use data, in conjunction with existing TRI data,
could also provide a more comprehensive picture of chemical use at the
facility level. The more complete the understanding of use and
wastestreams, the better positioned a facility is to assess process and
product efficiencies and to modify use, process, or product as
appropriate. Likewise, the more complete the understanding, the better
positioned the public is to participate on an equal footing in
environmental decisionmaking.
The TRI-Phase 3 project began in 1993, and public meetings were
held in 1994 and 1995 to receive stakeholder comments. On August 8,
1995, in a memorandum to the EPA Administrator, President Clinton
directed EPA to expedite Community Right-to-Know initiatives stating:
``I am committed to the effective implementation of this law [EPCRA]
because Community Right-to-Know protections provide a basic
informational tool to encourage informed community-based environmental
decisionmaking and provide a strong incentive for businesses to find
their own ways of preventing pollution.'' The memorandum directed EPA
to develop and implement ``an expedited, open, and transparent process
for consideration of reporting under EPCRA on information on the use of
toxic chemicals at facilities, including information on mass balance,
materials accounting, or other chemical use data.'' This ANPR is part
of EPA's response to this directive.
B. Statutory Authority
EPA has available a number of statutory authorities that would
allow the Agency to collect chemical use data elements. Because EPA has
not determined which data elements would constitute a ``chemical use
data set,'' it is premature to identify which specific authority(ies)
would be used. Instead, at this time, EPA is considering a variety of
strategies that could be used, individually or in combination, to
expand the reporting and public availability of chemical use data. For
example, the Agency might propose the addition of several data elements
to expand the TRI reporting requirements established under section 313
of the Emergency Planning and Community Right-to-Know Act of 1986
(EPCRA) (42 U.S.C. section 11023), and statutorily expanded under
section 6607 of the Pollution Prevention Act of 1990 (PPA) (42 U.S.C
section 13106). Alternatively, EPA might consider actions under the
Toxic Substances Control Act (TSCA), the Clean Water Act (CWA), the
Clean Air Act (CAA), etc. EPA is also reviewing existing use data
collected under other environmental statutes and by other Federal
agencies such as the Occupational Safety and Health Administration and
the Department of Transportation, and could propose a strategy based on
improving public access to such data. Improved public access is likely
to involve some type of linkage with TRI, since it is considered the
main public source of environmental data.
EPCRA section 313 requires the owner or operator of a facility at
which a listed chemical was manufactured, imported, processed or
otherwise used at levels exceeding the statutory thresholds, to report
certain information. Among the information required to be reported
about each toxic chemical is the general category or categories of use,
an estimated range of the maximum amount present at the facility, and
the annual quantity entering each environmental medium. Section 328
grants the Administrator general rulemaking authority to implement
EPCRA. 42 U.S.C. section 11048.
Section 6607 of the PPA requires owners and operators of a facility
who must report under EPCRA section 313, to also report annually to EPA
certain information on source reduction and recycling. Among the
information that must be reported is the amount of the chemical
recycled on or off-site, the quantity of the chemical released into the
environment, the quantity of the chemical entering any waste stream (or
otherwise released into the environment) prior to recycling, treatment
or disposal. Facilities must also report on source reduction practices
and the techniques used to identify source reduction opportunities.
Section 8(a) of TSCA provides EPA with authority to require
manufacturers, importers, and processors of a chemical substance or
mixture to submit such reports as the Administrator may reasonably
require. 15 U.S.C. section 2607(a). This section grants EPA broad
discretion in determining what information must be reported, including:
categories of use for each chemical substance or mixture; estimates of
the amount manufactured or processed for each category of use; a
description of the by-products resulting from manufacture, processing,
use or disposal of each chemical substance or mixture; and estimates of
the number of workers exposed and the duration of such exposure.
EPA is currently developing proposed amendments to the TSCA
Inventory Update Rule (IUR) (51 FR 21438, June 12, 1986) to require
submission of information predictive of the potential for chemical
exposures including data on industrial and consumer uses. These
amendments of the IUR are referred to as the Chemical Use Inventory.
EPA intends to use the data collected under the Chemical Use Inventory
to screen chemical risks and to establish risk assessment and risk
management priorities.
While, arguably, some similar information could be collected under
section 8(a) of TSCA and under EPCRA section 313 and PPA section 6607,
there are differences in the underlying purposes and available
authorities that may make it preferable to use multiple authorities to
accomplish the goal. For example, TSCA section 8(a) covers a larger
number of chemicals than EPCRA section 313; however, EPCRA section 313
covers pesticides, whereas TSCA section 8(a) does not. Use of EPCRA
section 313 raises fewer public access issues, but would not involve
the statutory small business exclusion included in TSCA section 8(a). A
further distinction is that TRI includes information from manufacturers
(including importers), processors and users, whereas TSCA section 8(a)
is limited to manufacturers, importers, and processors. In considering
any proposed rule(s) to require chemical use information in furtherance
of its Community Right-to-Know objectives, EPA is mindful of its
possibly overlapping authorities and will continue to coordinate its
efforts to avoid duplicative requirements.
[[Page 51324]]
In addition to the provisions discussed above, EPA is also
considering the information collection authority available under all of
the other statutes it implements, including the Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. section 136 et. seq., the
Clean Water Act, 33 U.S.C. section 1251 et. seq., the Clean Air Act, 42
U.S.C. section 7401 et. seq., the Resource Conservation and Recovery
Act, 42 U.S.C. section 6901 et. seq., and the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C.
section 9601 et. seq.
EPA has received a number of comments challenging EPA's authority
to collect the kind of information discussed in this ANPR under EPCRA
or the PPA. EPA believes that it has a broad array of statutory
authorities available to it to require reporting of data elements
discussed in this ANPR. EPA is currently examining all of the statutes
it implements to determine which authorities would be relevant to the
collection of chemical use data and the goals outlined in this ANPR.
However, until EPA determines the course of action to follow, any
discussion of specific statutory authority is premature.
C. Chemical Use and Materials Accounting Concepts and Background
``Chemical use'' is a broad information category that includes
qualitative (e.g., function or end-use), and quantitative (e.g., amount
or material flow) components. Use data are basic facility management
information and essential to understanding material use and costs. In
the TRI-Phase 3 project, EPA is looking at those aspects of use related
to the amounts of toxic chemicals entering and leaving a facility,
along with ancillary information connecting worker activity and
chemical use. The tracking of chemical throughput data is an
established engineering practice for many processes, currently
performed at many facilities to develop estimates for TRI reporting and
to monitor the engineering efficiency of facility processes. ``Mass
balance'' is the term used to describe the systematic collection and
evaluation of throughput data. The term reflects the principle that the
sum of the mass of chemical inputs (into a process or facility) should
equal the sum of the outputs after all chemical changes and
accumulations have been accounted for. Closure occurs when inputs and
outputs match or balance (within the accuracy of the measurements).
Mass balance is used as a tool for managing chemicals because lack of
closure may point to the need to examine the system for possible
losses. Such losses can have important economic and environmental costs
associated with them. Closure increases confidence that potential
losses have been identified and accounted for. Mass balance serves a
function similar to financial accounting, where inputs (income) and
outputs (expenses) are reconciled on a regular basis as a routine check
on financial performance.
Engineering mass balance is the most accurate type of mass balance,
as it involves actual measurement of process streams. It is useful for
engineering design of processes. Materials accounting is a more
approximate method of reporting a mass balance. It relies on routinely
collected information such as records of incoming shipments of raw
materials, production records, and product composition data. While it
is less accurate than engineering mass balance, it nevertheless
provides useful information and is also less costly to perform.
Materials accounting has been the main focus of TRI-Phase 3.
The utility of reporting mass balance information on TRI has been
debated for over a decade. It was discussed during the negotiations
that led to the passage of EPCRA in 1986. Proponents of mass balance
data claimed that it would provide essential reference data underlying
release estimates, and provide for a ledger check on TRI estimates. As
such, proponents contend that chemical throughput should itself be
considered a Right-to-Know issue. Opponents questioned the added value
provided by materials balance data when compared to the cost, the
public's need for information beyond release estimates, and the
potential loss of sensitive or confidential business information.
Because this issue was unresolved at the time of passage, section
313(l) of EPCRA directed EPA to arrange for the National Academy of
Sciences (NAS) to study this issue further. The resulting report,
entitled ``Tracking Toxic Substances at Industrial Facilities'' was
released in 1990. The purpose of the NAS study, as stated in EPCRA
section 313, was to examine the contribution that mass balance
information could make to assessing the accuracy of chemical release
estimates, evaluating waste-reduction efficiency, and providing
perspective on chemical management practices. The study was
inconclusive as to a recommendation to pursue or to drop consideration
of mass balance reporting. The NAS panel did, however, conclude that
materials accounting data, properly validated and interpreted by
persons with sufficient technical knowledge, may have better potential
for achieving the goals for the national uses listed in section 313
than engineering mass balance data. It went on to state that materials
accounting data were not precise enough for some purposes such as
checking on the accuracy of release estimates, but that these data did
warrant further consideration for looking at other issues such as the
reasonableness of release estimates, and for providing a better picture
of waste reduction progress. Finally, the study provided a number of
recommendations for future studies, many of which are reflected in
EPA's requests for comment in this ANPR.
Because the NAS evaluation was completed prior to enactment of PPA,
it did not evaluate the utility of materials accounting data against
the current TRI data set. Availability of the Form R section 8 data may
have allowed for a more definitive NAS conclusion.
TRI reporting trends clearly indicate that industry has made
reductions in releases and that industry is moving up the waste
management hierarchy established by PPA. However, based on 1994 TRI
data, the overall level of waste generated by industry is not
declining, thus raising many questions about the extent to which source
reduction progress is occurring and how it should be measured. The PPA
charges the Administrator with establishing standard methods for
measuring source reduction, and EPA believes materials accounting data
could facilitate the development and implementation of such methods.
TRI currently provides the public with quantitative data on the methods
of managing pollutants - recycling, treatment, and release (including
disposal). It does not provide data on source reduction, even though it
is the preferred national approach for improving environmental
performance.
Two states, New Jersey and Massachusetts, already require materials
accounting reporting. New Jersey began collection of such data in 1987
and expanded reporting beginning with the 1993 reporting year. The
state uses ten data elements to collect information on inputs and
outputs. Massachusetts began collection of materials accounting data in
1990 and uses five data elements to collect information on inputs and
outputs. Each state also collects data on performance measures
calculated from the materials accounting data. Some groups believe that
the resulting data have been useful in improving understanding and
measurement of source reduction progress. In addition, the availability
of these data have raised awareness about related Right-to-Know issues
such as the flow of toxics through communities and the potential
[[Page 51325]]
contribution of the product stream to environmental releases and
wastes. Stakeholders have indicated that information which would allow
life-cycle analysis of toxic chemicals would be useful in environmental
planning. Taken together, these developments have sustained general
interest in chemical use reporting over the years, and influenced EPA
to pursue additional review of materials accounting.
D. TRI-Phase 3 Origin and Status
The TRI-Phase 3 project grew out of EPA stakeholder meetings held
in 1993 to discuss the possible creation of a ``Chemical Use
Inventory'' (CUI). EPA initiated these discussions based on increasing
awareness of the potential value of ``use'' data to the Agency for
chemical screening and priority-setting under TSCA. Environmental and
public interest stakeholders were also interested in the concept of
facility-level chemical use data as a fundamental right-to-know issue,
and recommended that the Agency expand the project to put materials
accounting data in the public domain. These stakeholders described TRI
as the most logical place for this data, given its features and
importance. Industry stakeholders question that there is any
fundamental right to know about facility-level chemical use data unless
there is a demonstrated use. EPA created the TRI-Phase 3 project in
response to this interest and the importance of the underlying issues.
EPA prepared an initial issues paper (Issues Paper #1 - Ref. 3) and
held a public meeting in September of 1994 to begin the process of
exploring chemical use issues. The focus of the meeting was to learn
more about both stakeholder data needs driving the interest in
materials accounting and the nature of industry concerns. EPA
subsequently developed a three-step approach for categorizing and
evaluating TRI-Phase 3 issues and combined it with preliminary Agency
findings in a second issues paper released in October of 1995 (Issue
Paper #2 - Ref. 4). A report was also prepared in response to Executive
Order 12969 (Report to President Clinton - Expansion of Community
Right-to-Know Reporting to Include Chemical Use Data: Phase III of the
Toxics Release Inventory, Ref. 6). The Agency invited additional
comments in a second public meeting in October of 1995. This meeting
provided opportunity for more extensive discussion on issues such as
CBI concerns, and the potential for overlap with existing Agency
reporting. The Agency has prepared a third issues paper to report back
to stakeholders on what the Agency heard at the second public meeting,
and to describe plans for additional evaluation (Ref. 5). The issues
paper can be obtained from the EPCRA hotline at the numbers listed in
the FOR FURTHER INFORMATION CONTACT unit of this document, or
electronically via EPA's TRI Homepage at http://www.epa.gov/opptintr/
tri.
E. Discussion of Data Elements
EPA is considering several categories of data elements for
inclusion in this use information initiative, including elements on
chemical inputs, outputs, and occupational exposure indicators. By
input, EPA refers to the amounts of toxic chemicals brought into or
originating at a facility. By output, EPA refers to the amounts
produced, transformed into other chemicals, or present in products
leaving the site. EPA derived preliminary data element options from
those used in Massachusetts and New Jersey, where materials accounting
data is reported. Additional options were developed for occupational
indicator elements. The options, first described in Issues Paper #2
(Ref. 2), are described below. They are intended to encourage public
discussion.
Input options
Set A -Starting raw material inventory amount of the substance
-Amount produced on site
-Amount brought on site
Set B -Amount manufactured
-Amount processed
-Amount otherwise used
Set C -Total input amount
Output options
-Amount consumed on site
-Amount shipped off-site as (or in) product
-Ending raw material inventory amount
-Amount stored on site as or in product
Occupational exposure indicator options
Set A -Total number of workers at the facility
Set B -Total number of workers at the facility
-Number of workers potentially exposed to each EPCRA section 313
listed toxic chemical
Set C -Total number of workers at the facility
-Number of workers potentially exposed to each EPCRA section 313
listed toxic chemical
-Whether exposure assessment was performed for the chemical during
the year
-Whether exposure monitoring has ever been performed for the
chemical
Materials accounting measures
Waste-related source reduction performance measures
-Amount of wastes prevented by source reduction, in pounds
-Annual percentage (or index) reduction in total wastes
Normalization refinements
-Procedure for weighting multiple chemical uses
F. Relationship to Other Agency and Administration Priorities
EPA has received questions and comments on the value of chemical
use data to the Agency, and how it might fit with other Agency
priorities. TRI-Phase 3 is related to a variety of important issues
that cut across the Agency. EPA's 5-year strategic plan includes
``Prevention of wastes and harmful chemical releases,'' ``Improved
understanding of the environment,'' and ``Worker safety'' among its
national environmental goal areas. ``Pollution prevention'' and
``Environmental accountability'' are among EPA's guiding principles
(Ref. 2). EPA's responsibilities under PPA include establishing
standard methods of measurement of source reduction and facilitating
the adoption of source reduction techniques by business. The Agency
recognizes that improving efficiency of material use, for chemicals as
well as all other raw materials, is an important component of
sustainable development. The President's Council on Sustainable
Development recently recommended that the Federal government develop
indicators of progress toward national sustainable development goals
and to regularly report on these indicators to the public (Ref. 1).
EPA's role as a provider of information is central to a strategy
that promotes, empowers, and broadens activity by others to protect the
environment. This role must be carefully expanded if EPA is to move
beyond its traditional role as regulator of first resort. Community
Right-to-Know is among the most successful alternatives to command and
control approaches, and EPA believes that it provides an important
foundation for new alternative performance-based management systems.
For example, EPA is developing programs to increase community
participation and partnerships to move environmental decision-making
closer to the source of problems and solutions. Community access to
meaningful information is an important ingredient for the success of
this approach. Agency efforts to encourage more flexible approaches,
such as the Common Sense Initiative
[[Page 51326]]
and Project XL, also require the right set of information to measure
and understand environmental results. EPA's Common Sense Initiative
involves multi-stakeholder groups looking for industry-specific
``cleaner, cheaper, smarter'' approaches to environmental protection,
and sector groups have discussed the value of materials accounting
data. EPA's Project XL (for excellence and leadership) is intended to
encourage innovation and flexibility in meeting higher environmental
performance standards. Stakeholders in Project XL and CSI have
indicated that chemical use information would facilitate progress in
these projects as well. In sum, while the TRI-Phase 3 project involves
a number of difficult issues, continued development of this chemical
use project will have benefits across the Agency.
II. Key Issues and Request for Information
EPA has classified TRI-Phase 3 issues into five major categories
based on stakeholder comments to date. EPA encourages all interested
persons to submit comments on these issues, and to identify any other
relevant issues as well. This input will assist the Agency in
developing a proposed rule that successfully addresses information
needs while minimizing potential reporting problems associated with
chemical use information. EPA requests that commenters making specific
recommendations include supporting documentation where appropriate.
A. Questions about the Premise for and Utility of Chemical Use
Information
A fundamental TRI-Phase 3 issue is the usefulness and need for
chemical use information. There is substantial disagreement among
stakeholder groups on this question, and EPA solicits additional
comments and examples. The two areas of use information are described
below:
1. Materials accounting information. Environmental and public
interest groups contend that while TRI is an extremely valuable tool,
it falls short of providing the complete right-to-know picture needed
to fully understand toxic chemical issues. These groups have suggested
materials accounting data as the best remedy for addressing these
issues. Based on stakeholder input, EPA has identified the following
Right-to-Know ``data gaps'': (1) The need for information on the flow
and use of toxic chemicals at a facility; (2) the need for tracking
toxic chemicals in products; (3) better information on occupational
issues; (4) the need to create a ``scorecard'' for measuring and
promoting pollution prevention/source reduction; (5) the lack of a
ledger check on TRI estimates; (6) the need to improve TRI to serve as
a better tool for regulatory integration efforts; and (7) other uses
such as research and priority-setting.
Industry and trade association commenters disagree and contend that
chemical use information is of limited value. These groups have
presented the following arguments against the merits and need for
collecting materials accounting information: (1) Chemical use reporting
is based on a false premise that any type of chemical use is harmful
and should be eliminated; (2) a convincing argument has not been made
as to the utility of materials accounting data to the public; and (3)
materials accounting data does not in fact allow more accurate
measurement of source reduction progress. EPA recognizes that some
companies routinely collect materials accounting data as a way of
monitoring their operations. These firms use the data internally to
reduce chemical losses, improve product yield, and to manage their
materials. EPA recognizes that this is not a universally accepted
business practice and could be more appropriate for some industries
than for other industries.1
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1EPA is specifically requesting comment on the costs associated
with materials accounting data collection and concern associated
with sensitive or confidential business information.
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Some stakeholders from the industrial, environmental and state
regulatory communities have indicated that materials accounting data
are useful for looking at a variety of important environmental issues.
For example, chemical inputs can be compared with existing TRI releases
and wastes to examine the efficiency of facility chemical use over
time. This may provide important pollution prevention insights. Knowing
that 38 percent of the chemical input at a hypothetical chemical
processing facility goes into the release and waste stream, and that
the percentage has been increasing over time is valuable information,
for facility managers, for state and EPA regulators, and for
communities interested in looking at pollution prevention performance.
It should be noted however, it is not yet clear to what extent the
inaccuracies inherent in such data may limit it's usefulness for this
purpose. Supporters of the Right-to-Know Program believe that this is
the best approach currently available and better than the current gap
in information. Access to such information facilitates dialogue on
approaches that rely on preventing the generation of pollution over
those that rely on more traditional end-of-pipe solutions. In the long
run, the pursuit of strategies that improve efficiency are more likely
to enhance the viability of affected facilities, and the success of the
surrounding communities as well. Additional examples regarding the flow
and use of toxics through communities and the value of product stream
data can be found in EPA Issues Papers #1 and #2 (Refs. 3 and 4).
While materials accounting data may provide important insights to
the Agency, the public, and to industry, EPA acknowledges that further
evaluation is needed. EPA requests additional comments that provide
greater detail on how the public would use materials accounting data.
EPA also welcomes comments that take issue with the need for use data,
or challenge its information value. The Agency will use the comments to
perform a more comprehensive review of the premise for use reporting.
2. Occupational exposure indicator information. The manufacturing,
processing, and use of chemicals also involves workers; and
environmental and labor groups have recommended that data elements be
included to describe this aspect of chemical use. Workers are also
community members, and there is increasing interest in the link between
occupational exposure and environmental performance as well. Data on
the worker demographics at a facility can be viewed as part of the core
data set needed to characterize a facility. The data elements
describing the number of workers, providing basic estimates on the
number of potentially exposed workers, and indicating the extent to
which employee exposures have been assessed would enhance the
usefulness of TRI. Industry commenters agree that worker exposure which
may be tied to adverse effects should be monitored closely and provided
to workers, but have suggested that the issue be deferred to agencies
such as the Occupational Safety and Health Administration (OSHA) and
the National Institute for Occupational Safety and Health (NIOSH).
Industry stakeholders have also suggested that some data are already
available through OSHA and NIOSH. Preliminary discussion with these
agencies indicates that they support efforts by EPA to collect this
information and put it in the public domain. EPA is interested in
additional commentary and examples related to occupational exposure
indicator issues.
In summary, EPA requests additional comments on the premise for
chemical use information and its value to the
[[Page 51327]]
different sectors of the public. In addition to commentary, the Agency
requests that hypothetical or actual examples be submitted. EPA is also
interested in comments that distinguish between direct application of
chemical use data (e.g., using chemical input or output to look at the
flow of toxics through a community) and derived applications where the
data are combined with other information to develop a measurement
(e.g., combining chemical input with release and waste data to address
efficiency). Several questions are provided below:
1a. Do gaps exist in the current Right-to-Know Program? Do chemical
use data serve or not serve to fill right-to-know gaps identified by
stakeholders? Provide examples that will support your position. EPA is
interested in perspectives ranging from the community and facility
level up to the national level.
2a. Are any individual chemical use data elements viewed as more
useful than others?
3a. Can facility environmental performance be judged based on
existing publicly available environmental data? EPA is interested in
examples where data users could/ could not judge facility performance.
Is chemical use information seen as improving understanding and
accountability?
4a. If chemical use information were available to the public, how
would the public utilize this data? For example, what actions could a
community take with a better system to track pollution prevention or
the flow of toxics into and out of a neighborhood? Would there be the
potential for serious misuse of the data?
5a. How have chemical use data been applied by the public in New
Jersey and Massachusetts, where such reporting is already required? Has
the public in other states ever requested chemical use information from
facilities? If so, how was it used?
6a. What concerns are there about misuse, misunderstanding, or
misinterpretation of chemical use data by the public? What is the basis
for these concerns? Which specific data elements are most subject to
potential misunderstandings about a facility? How should these concerns
be considered in developing this initiative? EPA is also interested in
any examples of misuse and misinterpretations resulting from the
availability of this information in New Jersey and Massachusetts.
7a. Have industry and community organizations engaged in dialogue
about issues such as pollution prevention performance, toxics in
products, flow of toxics through communities, or the need for
accountability to support the use of flexible approaches to
environmental protection? If so, what information was seen as helpful?
8a. How could occupational indicator data be used by various
groups, including at the community level? Do other sources of data
exist (e.g., OSHA's Hazard Communication Standard) that could fill this
informational gap? EPA is interested in stakeholders views on the role
of TRI and its relationship to worker safety and health performance,
including the number of potentially exposed workers and environmental
performance, and the appropriate linkage between them.
9a. What are the views of state environmental representatives about
the utility of chemical use information? What experiences have states
had in measuring pollution prevention efforts? What might the
advantages and/or disadvantages be of having materials accounting data
collected nationally rather than at the state level? EPA welcomes state
perspectives on TRI-Phase 3 issues.
10a. Should EPA conduct a national pilot program to collect
materials accounting data on a limited number of chemicals as
recommended by the NAS report?
11a. What methodologies are available for quantifying the benefits
of chemical use data? Could the relative use levels of data from New
Jersey and Massachusetts be used to develop a measure of willingness to
pay for the data? EPA welcomes comments from potential users of the
data on their own willingness to pay. EPA is also interested in
examples from New Jersey and Massachusetts on the savings versus costs
of collecting and using materials accounting data.
B. Agency-wide Environmental Reporting Issues
Industry commenters have raised several issues concerning the
relationship between TRI-Phase 3 and Agency-wide reporting policies.
One comment is that the Agency may already collect certain types of
chemical use data under other programs, and that EPA should explore how
it could integrate such data into TRI before calling for additional
reporting. This perspective appears to suggest that chemical use data
gaps can be addressed with improvements in internal EPA data
management. Another issue is the relationship between the TRI-Phase 3
project and EPA efforts under the National Performance Review
``Reinventing Environmental Regulation'' project, which includes goals
for reducing reporting burdens. EPA's objective is to identify and
eliminate unnecessary burden so that resources dedicated to data
collection can be focused on information considered more useful. The
need to reduce overall reporting burden does not preclude all efforts
to expand reporting. However, given the overall need for reduction,
some commenters have inquired as to how chemical use data compares in
priority with other types of environmental information across the
Agency. Environmental stakeholders have asserted that the need to
streamline current reporting requirements should not be confused with
the need to collect the appropriate set of data on facility
environmental performance. These groups have expressed confidence that
materials accounting data are part of any core data set needed for
performance review. EPA will be evaluating these environmental
reporting issues further as part of TRI-Phase 3. In the meantime, the
Agency encourages interested persons to submit comments on TRI-Phase 3
reporting issues. Several questions are provided below:
1b. Which existing EPA or other Federal agency data sources do
stakeholders view as providing information equivalent to materials
accounting and other chemical use data? The Agency is especially
interested in perspectives of facility personnel filling out
environmental reports, and members of the public and environmental
groups who use EPA data.
2b. Please provide examples of existing sources of chemical use
information which have been or could be used to examine data gap issues
such as tracking pollution prevention, the flow of toxic chemicals
through communities, and product stream issues. Please provide
suggestions for improving access to such data and how these data could
be used.
3b. Please comment on how materials accounting data can be used as
a basis for streamlining multi-media permitting or similar efforts.
Would the collection of materials accounting data replace the need to
collect data currently being collected by EPA? If so, which data?
4b. For all of the above, how should EPA address situations where
use data from other internal data bases have value, but the scope of
chemical or facility coverage differs so that the end result would be
an incomplete TRI data base?
[[Page 51328]]
C. Impacts on Confidential Business Information (CBI)
Preliminary information provided by industry groups has been
helpful in clarifying the set of issues related to CBI concerns.
Industry is concerned that public dissemination of chemical use data
collected under TRI-Phase 3 would result in release of CBI. They
believe that access to chemical use information would provide
competitors with the opportunity to extract sensitive product, process
and economic information about a company. They are concerned that this
would, in turn, put American companies at a competitive disadvantage
and cause them to lose world-wide market share.
Environmental stakeholders recognize potential release of CBI as a
legitimate concern, but are less certain about the magnitude and
frequency of the problem. They contend that there is no indication that
existing TRI data have been used for industrial espionage.
Additionally, they assert that there have been no examples where
materials accounting reporting has resulted in a loss to industry,
specifically in New Jersey and Massachusetts where materials accounting
information is collected by the state.
EPA agrees that the potential for loss of sensitive business
information is a legitimate issue that must be addressed in order for
chemical use reporting to move forward. EPA requests additional
information describing and listing the different types of losses that
are of concern to industry, so that the Agency can perform a more
comprehensive review. For example, EPA is interested in the sequence by
which materials accounting and other chemical use data, by itself or in
combination with other environmental data, can be used by competitors
to reveal sensitive business information. EPA also seeks additional
information on conditions that could either contribute to or alleviate
these concerns. For example, manufacturing facilities producing large
numbers of different products might not have the same CBI concerns as
smaller facilities producing only a few products. The volume of
products and production lines might serve to mask the use information.
Similarly, a facility using a toxic chemical in a variety of processes
might not have the same CBI concerns of a facility producing or using a
unique chemical or a distinct manufacturing process which requires a
specific chemistry.
Case reports or studies that will allow the Agency and other
stakeholders to understand and verify how losses occur would be
especially useful. Such information will assist the Agency in
developing common-sense approaches to CBI issues. For example, the
Chemical Manufacturers Association (CMA) commissioned a study by Kline
Company to develop a business profile of an actual facility using
publicly available information supplemented by materials accounting
data. (CMA has provided EPA with a copy and it has been placed in the
docket.) The study concluded that the materials accounting data were
useful for developing an overall profile, although they were considered
less useful than data from Clean Air Act (CAA) permit filings. The
study helps to characterize the categories of losses considered
important by industry. EPA is interested in receiving similar studies,
and recommends that background information be included to allow a
better understanding of the basis for conclusions. EPA is interested in
the relative value of each materials accounting data element for the
extraction of sensitive business information, the role and contribution
made by other types of environmental data, and the impact of various
safeguards in protecting CBI. The Agency is also interested in any
differences in CBI issues among industry sectors. EPA invites comments
on the following specific questions:
1c. What business loss categories (e.g., reverse engineering of
product line, revealing of cost structure) does industry associate with
public disclosure of materials accounting data? How do the categories
rank in importance? For each category, which data elements are
involved, and what is the sequence by which the information is used by
competitors to transform the data into a competitive gain?
2c. Which loss categories are associated only with materials
accounting data? What additional loss categories can result when
materials accounting data are combined with other environmental data
(e.g., Clean Air Act or Clean Water Act permit data)? What are the
other types of data, and what is the sequence by which they can be used
by competitors to reveal CBI?
3c. Have any cases been identified in New Jersey or Massachusetts
where CBI loss was linked to public access to materials accounting
data?
4c. Which of the materials accounting data elements is of most
concern? What suggestions do CBI or Right-to-Know experts have for
modifying materials accounting data elements to better protect CBI
while still preserving public access to relevant chemical use data?
5c. To what extent do CBI issues vary by industry sector?
Preliminary information indicates that the potential for business
losses might be more of an issue for chemical manufacturers than for
chemical users. EPA requests comment on this question. Do sectorspecific
differences offer any strategies for safeguarding CBI?
6c. If other EPA data play a significant role (when combined with
materials accounting data) in loss of CBI, what suggestions do
stakeholders have for changes to other data systems to improve
protection of CBI?
D. Cost Estimates
EPA believes that some of the raw data used as the basis for
materials accounting will typically be generated or used in the normal
course of business by many firms. EPA is interested in identifying
which data are already routinely collected, which data that might be
required for materials accounting are not already collected, the steps
and factors involved in transforming the raw data into chemicalspecific
materials accounting and other use information, and the costs
associated with this process. EPA is also interested in the extent to
which firms already assemble materials accounting data. In some cases,
full materials accounting data may already be routinely collected. In
other cases, partial data, such as chemical inputs, may be collected at
a facility in order to document that they exceed the 25,000 pound a
year EPCRA section 313(f)(1) reporting threshold for manufacture or
process activities, and/or the 10,000 pound a year threshold for
otherwise use activities. In other cases, facilities may be collecting
use information because they are using mass balance methods to estimate
TRI releases. Where partial materials accounting data are already
collected, the Agency is interested in steps and costs associated with
collecting the additional materials accounting data, such as amounts
consumed on-site and amounts shipped off-site in products. EPA
encourages facilities that currently report under state programs in New
Jersey and Massachusetts, or that currently collect materials
accounting data for their own business purposes, to submit cost
information for review. Estimates that include a general facility
description (e.g., manufacturer versus processor, number of forms
submitted), that address other uses of the data, and that provide
estimates per chemical report form will be most helpful. A list of
questions follows:
1d. What are the steps involved in gathering materials accounting
data,
[[Page 51329]]
starting with the basic cost and operations data collected in the
normal course of business? Are there obstacles in collecting this
information? EPA is interested in descriptions for each data element,
the estimated costs for each step, and a description of the obstacles
and any remedies to address identified obstacles.
2d. What would be the steps and costs for facilities that already
collect and use materials accounting information?
3d. How many facilities collect basic cost and operations data that
can be used to generate partial or full materials accounting data? How
many facilities currently generate partial or full materials accounting
data?
4d. It has been suggested that while facilities which do not
currently gather materials accounting data will likely have higher
costs, these facilities would also be expected to derive the greater
benefit and savings offsets from the inherent value of the information.
Others argue that facilities which do not currently collect such data
may be those for which the data has the least value, or for which
collecting it would be particularly difficult or expensive. EPA is
interested in comments and examples on how this issue should be
treated.
5d. Please provide existing cost estimates based on facility
experiences in New Jersey and Massachusetts, or from other facilities
where materials accounting data are collected as a good business
practice.
6d. EPA is interested in information regarding both first year
start-up costs and annual costs once a system is set up.
7d. EPA requests information on variations in cost. For example,
are there any particular materials accounting data elements that are
more costly than the others? How does the number of uses affect costs?
How does the number of products in the product stream affect costs? Do
costs differ among use sectors, especially for otherwise users who
should not need to report on amounts consumed or put into the product
stream?
8d. EPA requests comment on the potential costs to small businesses
of collecting materials accounting data and on what factors EPA should
focus in further developing this project so that these costs are
minimized, e.g. facility size, employees, revenue, etc.
9d. TRI provides a number of reporting exemptions and modifications
such as the alternate threshold reporting modification, de-minimis
exemption, article exemption, laboratory exemption, structural
component exemption, etc. How would these reporting exemptions and
modifications impact the collection and utility of materials accounting
data if EPA were to expand TRI to collect chemical use information?
What role could reporting exemptions and modifications play in
alleviating the reporting burden to small businesses?
E. Technical Collection and Interpretation Issues
Stakeholders have raised technical questions about the mechanics of
materials accounting and occupational exposure indicator reporting, and
the precision and appropriate interpretation of the results. Topics
range from the conceptual to the practical and include the following:
(1) The activities that need to be accounted for to measure source
reduction; (2) the mechanics of using materials accounting to measure
source reduction, and the degree to which it improves upon the current
TRI-based methods; (3) the role of normalization in the measurement of
source reduction; (4) the mechanics of product stream reporting; (5)
appropriate comparisons of materials accounting data between
facilities; (6) the basis for estimating ``potentially exposed
workers''; and (7) the need for definitions for certain terms. EPA
requests comments on these and other technical measurement and
reporting issues. The Agency is also interested in alternative data
element options and suggestions for safeguards that balance CBI and
Right-to-Know. Specifically, EPA is soliciting information on the
following:
1e. EPA is not aware of any major technical reporting or
interpretation issues arising out of state requirements in New Jersey
or Massachusetts that need to be addressed as part of TRI-Phase 3.
Please provide information on any state reporting issues that should be
considered relevant to TRI-Phase 3.
2e. Please provide any suggestions for additional data element
options, along with rationale for why they should be considered.
3e. To what extent should EPA identify formulas that can be used to
derive performance measures using materials accounting data? If some
data gaps are best filled with derived measures, should EPA consider
reporting of the measure instead?
4e. Are caveats needed when materials accounting data from two or
more different facilities are being compared? If so, what are they?
III. Plans for Evaluation and Proposal Development
In addition to evaluating the public comments submitted in response
to this Notice, EPA will also take the following additional steps to
evaluate several key issues.
A. EPA Evaluation Activities
EPA is taking steps to examine the following issues as part of its
evaluation of TRI-Phase 3 issues.
1. Comprehensive review of existing EPA data collection programs.
EPA will take a closer look at existing data bases to identify and
evaluate sources of chemical use data already being collected by the
Agency as well as data available from other Federal agencies such as
OSHA and DOT. The purpose is to examine whether improving access to
existing data might provide an effective alternative to new reporting
requirements. The evaluation will include looking at the scope of
facility and chemical coverage, and factors related to integration of
the existing data into TRI. The review will also address: linkages
between TRI-Phase 3 and the TSCA Inventory Update Rule expansion;
coordination with the Agency One-Stop Reporting initiative; and the
potential for using materials accounting to integrate regulatory
requirements. EPA believes that TRI-Phase 3 and the TSCA Inventory
Update Rule Amendments can be designed so that any overlap between them
is minimal. However, the Agency will track this issue as the two
projects are developed further. In addition, EPA will ask for public
comment on how to minimize any overlap when the TSCA proposed rule is
published.
2. Evaluation of New Jersey and Massachusetts materials accounting
programs. EPA will review the impact that materials accounting
reporting has made in these two states. EPA will look at who is using
the data and for what purpose. The Agency also plans to examine the
state program experience with CBI in order to learn more about the
effectiveness of various approaches to protect CBI, and the potential
impacts that are associated with loss of CBI. EPA also plans to examine
the economic effects of the state programs, including reporting costs
and qualitative and quantitative estimates of benefits from collecting,
evaluating, and using the data.
3. Evaluation of CBI issues. EPA also plans to examine other
aspects of the CBI issue in greater detail. The Agency will evaluate
existing reports on this subject (e.g., the Kline Report), and will
examine the relationship between specific data elements and the
potential for loss of sensitive business information. EPA will also
assess the adequacy and value of different mechanisms for protecting
CBI.
[[Page 51330]]
4. Review of occupational exposure indicator issue with OSHA and
NIOSH. EPA will continue its consultation with its occupational agency
partners to discuss the utility of occupational exposure indicator
information, and whether it is appropriate for EPA to collect it and
make it available via TRI. EPA will also review alternative options for
making this information available to the public.
B. Public Meetings
EPA will hold two 1-day public meetings, one in Boston, MA and one
in Baton Rouge, LA to discuss the issues presented above. The tentative
agenda for these public meetings will include a discussion of the
issues presented in Unit II. of this ANPR. Specific information on
these public meetings is contained in a Notice of public meeting
published elsewhere in this issue of the Federal Register. Information
from all public meetings will be placed into the TRI-Phase 3 docket.
C. Examination of Data Elements, Reporting Vehicles, and Formats
After reviewing public comments, internal evaluation results, and
after further consideration of reporting vehicles, EPA will examine
whether additional data element options can be, or need to be developed
for consideration as part of any proposal. The Agency believes that
careful selection of data elements and reporting features is essential
to optimizing the Right-to-Know value of chemical use information while
avoiding reporting problems. EPA is open to development of new
combinations of data elements, and intends to examine whether
additional types of reporting options and data elements might play a
role in addressing concerns.
IV. Rulemaking Record and Electronic Filing of Comments
A record has been established for this ANPR under docket number
``OPPTS-400106'' (including comments and data submitted electronically
as described below). A public version of this record, including printed
paper versions of electronic comments, which does not include any
information claimed as CBI, is available for inspection from noon to 4
p.m., Monday through Friday, excluding legal holidays. The public
record is located in the TSCA Nonconfidential Information Center, Room
NE-B607, 401 M St., SW., Washington, DC 20460.
Any person who submits comments claimed as CBI must mark the
comments as ``confidential,'' ``CBI,'' or other appropriate
designation. Comments not claimed as confidential at the time of
submission will be placed in the public file. Any comments marked as
confidential will be treated in accordance with the procedures in 40
CFR part 2. Any person submitting comments claimed to be confidential
must prepare a nonconfidential public version of the comments in
triplicate that EPA can place in the public file.
Electronic comments can be sent directly to EPA at
oppt.ncic@epamail.epa.gov. Electronic comments must be submitted as an
ASCII file avoiding the use of special characters and any form of
encryption. The official record for this action, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed
paper form as they are received and will place the paper copies in the
official record which will also include all comments submitted directly
in writing. The official record is the paper record maintained at the
address in ADDRESSES at the beginning of this document.
V. References
1. PCSD. Sustainable America - A New Consensus for Prosperity,
Opportunity, and a Healthy Environment for the Future. The President's
Council on Sustainable Development, Washington, DC (1996).
2. USEPA/OA. The New Generation of Environmental Protection - EPA's
Five Year Strategic Plan. U.S. Environmental Protection Agency,
Washington, DC (1994).
3. USEPA/OPPT. Issue Paper #1: Expansion of the Toxics Release
Inventory to Gather Chemical Use Information: TRI-Phase 3: Use
Expansion. U.S. Environmental Protection Agency, Washington, DC (1994).
4. USEPA/OPPT. Issue Paper #2: Expansion of the Toxics Release
Inventory to Gather Chemical Use Information: TRI-Phase 3. U.S.
Environmental Protection Agency, Washington, DC (1995).
5. USEPA/OPPT. Issue Paper #3: Expansion of the Toxics Release
Inventory to Gather Chemical Use Information: TRI-Phase 3. U.S.
Environmental Protection Agency, Washington, DC (1996).
6. USEPA/OPPT. Report to President Clinton - Expansion of Community
Right-to-Know Reporting to Include Chemical Use Data: Phase III of the
Toxics Release Inventory. U.S. Environmental Protection Agency,
Washington, DC (1995).
VI. Regulatory Assessment Requirements
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),
it has been determined that this ANPR is ``significant'' because it may
raise novel legal or policy issues arising out of legal mandates and
the President's priorities. This action was submitted to OMB for
review, and any comments or changes made during that review have been
documented in the public record.
In the event that EPA decides to issue a proposed rule (or rules)
to expand its Community Right-to-Know program to include additional
chemical use information, EPA will need to comply with a number of
additional statutory and regulatory requirements. The exact
requirements will vary depending on the specifics of the proposed
rule(s). However, among the additional requirements with which EPA
might need to comply are the Paperwork Reduction Act, the Unfunded
Mandates Reform Act, and the Small Business Regulatory Enforcement
Fairness Act. In addition, EPA might need to comply with the Executive
Orders 12875, Enhancing the Intergovernmental Partnership; 12866,
Regulatory Planning and Review; and 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations. In preparing any proposed rule(s) contemplated by this
ANPR, EPA will develop the analysis necessary to satisfy these other
requirements, as well as comply with the procedural steps mandated by
the underlying statutes, regulations, and Executive Orders.
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Toxic chemicals.
Dated: September 25, 1996.
Carol M. Browner,
Administrator.
[FR Doc. 96-25012 Filed 9-30-96; 8:45 am]
BILLING CODE 6560-50-F