December 24, 1996
Fred Hansen
Deputy Administrator
Environmental Protection Agency
401 M Street, S.W.
Washington, DC 20460
Subject: Toxic Release Inventory (TRI) Report Requirements - Industry Expansion; Chemical Wholesalers; Docket No. OPPTS-400104.
Dear Mr. Hansen:
We are taking this opportunity to apprise you of new data which demonstrates that facilities in the chemical wholesale industry (SIC code 5169) do not belong in the proposed addition of industries to the Toxic Release Inventory (TRI). Although we recently submitted this data to the Office of Pollution Prevention and Toxics, we are bringing it your attention in light of the importance of this matter to the many small businesses in SIC code 5169.
Background
EPA's single release estimate discussed in the preamble to the proposal was based solely on 1993 data from Massachusetts. This data showed that releases from SIC code 5169 facilities were minor (releases almost entirely below 1,000 pounds per chemical each year), with one exception: one facility reported a fugitive air release of approximately 45,000 pounds of methyl ethyl ketone (MEK) in that year. The MEK release figure alone increased the average facility release estimate by thousands of pounds.
EPA's economic analysis of the proposed rule, meanwhile, showed that small businesses in the chemical wholesale industry would bear a particularly heavy annual cost burden. The analysis demonstrated that the reporting costs would be approximately equal to the average small firm's net income in many instances. Despite these punitive costs, EPA nonetheless decided to include SIC code 5169 in light of its belief that these releases were high.
Massachusetts Data is Erroneous
Because the MEK release figure for the facility in Massachusetts appeared to be anomalous, we contacted the facility several months ago. We were informed that the figure was high by several orders of magnitude. Although we advised EPA that this particular release was in error, the staff apparently made no effort to contact the facility to confirm our finding.
The new information which we want to bring to your attention is written confirmation (enclosed) that the Massachusetts data underpinning EPA's decision to regulate SIC code 5169 is in fact erroneous. We recently made an additional effort to contact the facility, and the facility subsequently sent the attached letter to the EPA reporting center, correcting the release figure from approximately 45,000 pounds to 369 pounds.1 This 100-fold correction is crucial for the many small businesses in SIC code 5169 because it means that, considering all available data, annual facility releases are much less than EPA's previous estimates. Because EPA's own economic analysis reveals these facilities are facing onerous reporting costs under TRI, SIC code 5169 should not be included in the final rule.2
Indeed, the total release of volatile chemicals from the average facility (numbering less than a thousand) is equal or less than the release of volatile organic chemicals from over 160,000 medium and large size gasoline stations nationwide (a medium size gasoline facility emits about 3.89 tons per year; large facility 27.1 tons per year)3. (See attached revised data from Arizona, Massachusetts and Minnesota, three states with TRI data from this industry.) Thus, in order to avoid overwhelming the TRI database with many tens of thousands of insignificant sources (it currently has about 23,000 facilities), EPA needs to seriously consider whether the volume of releases of each industry including SIC code 5169 warrants reporting.
Conclusion
Based on the evidence before us, we again urge the agency to exclude SIC code 5169 from TRI. EPA then should make available to the public the entire chemical inventory data from all chemical wholesalers (sections 311 and 312 of the Emergency Preparedness and Community Right to Know Act (EPCRA)), which would serve the same right-to-know purposes as TRI.4 This alternative would cost less than a small fraction of the estimated $50 million needed to report the minimal releases in the TRI program. Alternatively, the agency could expand applicability of the alternate Form A so that virtually all the minimal releases from this industry (and others) could be reported on the two-page Form A.
EPA should take this opportunity to show that it is sensitive to small business concerns, and can regulate using "common sense." The agency can creatively move to provide data that is not otherwise accessible to the public through additions of non-TRI data to the TRI database. It is our belief that EPA can issue a rule that adds to the citizens' right-to-know by excluding industries with no right-to-know value, and reducing or eliminating the paperwork requirements on industries with overlapping reporting responsibilities, such as the petroleum wholesale industry.
We look forward to working with the agency to make further improvements in the proposed rule. We ask that you stay involved in this process, and help bring these important issues to resolution. If you have any questions, please feel free to call me or Kevin Bromberg of my staff at 202-205-6964.
Sincerely,
Jere W. Glover
Chief Counsel for Advocacy
Enclosures
cc: Lynn Goldman
Sally Katzen
Tom Kelly
Karen Brown National Association of Chemical Distributors OPPTS Docket
ENDNOTES
1 In addition, the facility further informs us that all of the napthalene emissions, and a large proportion of the ammonia and formaldehyde emissions are contributed by a manufacturing facility on the same site as the chemical wholesale activity (further reducing the facility release estimates by about one half for this facility with the largest reported releases in the SIC code 5169).
2 We also found that we could not verify the EPA summary of additional TRI industry data in the economic analysis accompanying the proposal On the day before the comment period ended, we learned that the agency had inexplicably deleted all records of zero releases from the analysis (see memorandum of Kevin Bromberg to Christine Augustyniak, November 26, 1996). In our view, this analysis also gives misleadingly higher average release figures.
3 EPA, Gasoline Distribution Industry (Stage I) - Background Information for Proposed Standards; Table 8-23; p. 8-54; January 1984.
4 With the chemical inventory data, the citizen could compile a list of the volatile chemicals that are expected to have minimal air releases, which would be as informative as the TRI Form A certifications of small air releases at a small fraction of the cost.