February 23, 1998
OPPT Document Control Office (7407)
Office of Pollution Prevention and Toxics
Environmental Protection Agency
Room G-099, East Tower
401 M Street, SW
Washington, DC 20460
Subject: Proposed Renewal Request for OMB No. 2070-0143 (EPA ICR No. 1704.05); 62 Fed. Reg. 67358 (December 24, 1997); Administrative Record No. 187; Docket Control No. OPPTS-00229; Alternate Threshold for Low Annual Reportable Amounts; Toxic Release Inventory Reporting
The Office of Advocacy of the U.S. Small Business Administration is submitting these comments on the TRI Form A, the alternate threshold form provided as a substitute for the longer eight page Form R. As you may know, the Office of Advocacy, by petition, initiated the rulemaking process in 1991 that resulted in the promulgation of the Form A. We are very pleased that EPA created this form in 1994, which the agency estimated would result in several hundred thousand hours in annual paperwork savings. However, the current Form A is only available to a very narrow proportion of the reports that could utilize the "short form," and EPA fails to explain adequately why it is not pursuing regulatory revisions to permit additional paperwork savings.
I. Paperwork Regulations Require EPA To Minimize Paperwork Burdens for All Reporting Entities, Especially Small Business Reporters
Under the Federal paperwork regulations administered by the OMB, EPA is directed to develop the least burdensome reporting form to achieve its statutory and regulatory purposes.(1) Each Federal agency is required to take "all practicable steps to develop separate and simplified requirements for small businesses and other small entities" 5 C.F.R. §1320.6(h). In addressing this requirement, the EPA guidance instructs EPA staff to describe in the ICR justification "alternative collection procedures or other actions (e.g. a reporting exemption) that [EPA] will institute to minimize the burden for small entities."(2) Further, OMB regulations require that the paperwork have "practical utility"(3)to the agency. OMB may disapprove, in whole or in part, any ICR if the agency has failed to initiate procedures to revise the ICR, or failed to publish a final rule, in accordance with the above paperwork requirements.(4) In sum, EPA is required to explore all reasonable steps, including streamlined reporting requirements, particularly for small businesses, as a means to reducing paperwork burdens and ensuring that the required paperwork has "practical utility."
II. EPA Must Permit Streamlined Reporting Under TRI for All Small Sources In Order to Comply with the Requirements of the Paperwork Reduction Act
EPA must implement streamlined reporting for all small sources, not a small subset, to comply fully with the above described regulations and fulfill its responsibility under the Paperwork Reduction Act. First, as explained below, we assert that streamlined reporting for all small sources is a "practicable step" under §§1320.4(b)(1) and 1320.6(h) which minimizes paperwork burdens to all reporting entities, particularly to small businesses, while achieving the statutory purposes of right-to-know. Second, the current inclusion of full Form R reports from any small sources violates the requirement of §1320.4(b) that the provided data have "practical utility" to the agency because, by definition, small source reports have no little environmental or health significance. Thus, streamlined reporting for small sources is an appropriate approach for minimizing the reporting burden on both small and large businesses which release small quantities of TRI chemicals.(5)
A. The Universe of Current Form A Reports is Too Narrow
The Form A currently provides the right-to-know information for only a very small universe of TRI reporters. A facility may only use the Form A (certification form) if the total wastes do not exceed 500 pounds in a single year (less than two pounds/day). In other words, the facility must count all releases, all transfers for treatment, disposal, and amounts recycled on or off-site and amounts used in energy recovery. This is too restrictive for 80% of TRI reports. Over one hundred similar comments are found in the earlier rulemaking record which led to the adoption of the Form A in 1994.
In 1994, EPA estimated that about 20,100 of 82,000 Form R's qualify for Form A at this 500 pound threshold (1992 TRI data). However, if one removes the amounts recycled or energy recovered, and counts only true releases and transfers for treatment and disposal, 33,000 reports would be covered, even at 500 pounds! At 500 pounds releases and off-site transfers, (which excludes recycling/energy recovery), only 4 million pounds of releases and transfers are omitted from the Form R's of a total of over 2 billion pounds in the database (only about 0.2%). Therefore, 500 pounds of releases and transfers is a very conservative option for the certification form, providing full Form R's for 99.8% of all releases and transfers, the only source of risk to the community.
Furthermore, one could easily justify 2000 or 5000 pounds of release/transfers. Either of these figures would result in Form R coverage of over 99% of all TRI releases and transfers. EPA also has the choice of using risk-based thresholds, considering both chronic and acute effects. The great majority of reports pertain to commodity chemicals, such as ammonia, sulfuric acid, hydrochloric acid, and toluene with well-known toxicity. Conservative risk-based thresholds can be easily established for such chemicals. Furthermore, EPA's development of the Toxic Release Indicators (risk indicators) over the last several years, permits the agency to employ a risk-based threshold, if it prefers that approach over a single Form A threshold as it exists today.
B. EPA Committed to Pursuing Paperwork Reduction Efforts in 1997
When EPA promulgated the final rule adding seven industrial expansion industries in April 1997, it committed to exploring meaningful paperwork reduction for all affected reporters. We believe strongly that this paperwork reduction should occur in time for the industry expansion. This is particularly true because the data Advocacy presented to EPA last year show that the reports from two small business industries, chemical and petroleum wholesalers, will describe releases that are almost entirely below 1000 pounds per year. With an expanded version of the Form A (even only to 2000 pounds), thousands of new reporters would achieve substantial paperwork reduction in time for the first year of reporting. EPA economic analyses showed that these industries were potentially facing significant reporting costs using the Form R. Allowing these industries to report figures in broad ranges ("range reporting"), rather than requiring point estimates for these very small releases, will allow substantial reporting cost reductions.
C. Office of Advocacy's Specific Changes
We have included, as an attachment, several memoranda, outlining six specific changes for the Form A, and a February 18, 1997 contractor report justifying revisions in the Form A. These changes will both reduce the overall paperwork burden by allowing more filers to switch to the short form, and will enhance the value of the Form A report by adding specific quantitative data about the destination of chemical wastes, including information demanded by environmentalists concerning energy recovery and recycling. These changes would permit 99% of the release and transfer data to be reported on the full Form R, and 99% of the recycling and energy recovery data to be reported on either the Form R or the Form A.
In addition, we are suggesting that the Form A be consolidated with the Form R to encourage others to take advantage of the Form A, and to ensure that they became aware of the Form A option.
III. EPA Did Not Adequately Justify the Current Form A
EPA's justification for retention of the current Form A is that it is "premature" to modify the Form A because the form is new and few facilities are using it. The fact that only a minority of the qualified facilities have used the Form A has little bearing on whether currently unqualified facilities would benefit from expanded coverage. First, EPA is in large part responsible for the lack of knowledge and understanding of the Form A, which according to the Interim Report, explains most of the "nonuse" of the form. Second, there is no valid reason to wait until more facilities take advantage of the Form A before allowing others to do the same. If there is a valid need for relief for other facilities, why should their relief be dependent on the implementation of additional EPA outreach and education of the original group? If the Form A provides burden relief for another group of reports, and the Form R data has no "practical utility," the Paperwork Reduction Act requires action now. The Act does not permit delaying relief for one group of reporters, while the agency makes efforts to provide additional relief to the first group.
EPA includes a discussion of "missing information" created by using the current Form A, although the agency reaches no conclusion about its analyses. The agency simply describes that the Form A provides less than the "full information," without explaining the value of the missing Form R data. However, EPA did not explain how this "full information" carries any valuable information that is not available from the Form A, which in effect, provides a range report of between 0 and 500 pounds for the named chemical. In EPA's next analysis of the Form A, it needs to explicitly address in some meaningful manner the right-to-know value of the "missing information." In addition, under the SBA Office of Advocacy's new version of the Form A, this information will no longer be missing; the most significant information would be provided in our suggested range reporting scenario.
IV. EPA Should Revise Now the Current Instructions for the Form A
In the latest draft of the Form A and Form R instructions for the 1997 reporting year, there is no notice or discussion of the availability of the Form A option until page 50 of the instructions. Although we note with approval that the Agency has placed the Form A and Form R together in the instruction book, the instructions fail to address the availability of the Form A until after the reader has completed reading the Form R instructions, and possibly completing the Form R. EPA's Interim Form A report discusses the dismal state of knowledge of reporters about the Form A. It is imperative that the agency provide an introductory section outlining the applicability of both Forms, and discussing the advantages of using the Form A (including the absence of state TRI fees and other "piggyback" requirements.)
V. EPA Failed to Comply with The Terms of the Last OMB Clearance
In the September 1996 clearance instructions, OMB required EPA to provide an interim analysis on the Form A by June 1997, and consider several regulatory options as alternatives to the current Form A. The EPA analysis was not completed until December 1997, and it failed to analyze several of the alternatives specified in the OMB clearance, including thresholds higher than 1000 pounds. EPA should perform a new analysis using 1996 data by March 31, 1998 and consider all the OMB regulatory alternatives. EPA should take steps to propose a revised Form A by June 30, 1998, and complete a final rule by February 28, 1999, in order to meet the July 1, 1999 reporting date. OMB, as always, should reserve its right to initiate rulemaking, in the event that EPA fails to comply with the requirements of the Paperwork Reduction Act.
VI. Recommendations:
1. OMB should require EPA to initiate rulemaking to expand coverage of Form A to be completed by February 28, 1999, in time for the 1998 reporting year. EPA needs to complete a new analysis to include an analysis of all Form A's received in 1995 and 1996, to examine the value of the "missing information," and to examine the value of requiring range reporting on the Form A.
2. OMB should only approve the Form A through June 30, 1998, when a proposed rule revising the scope and form of the Form A should be issued. EPA should explicitly consider and adopt or explain why it is rejecting each of the six revisions proposed by SBA Office of Advocacy. The agency can consider adoption of a variation of the SBA recommendations. The proposal must include an expansion of some sort of the scope of applicability of the Form A, with a goal of at least doubling the paperwork burden reduction over the current relief provided.
3. The alternate threshold itself should be raised from 1 million pounds to 10 million pounds or higher. (See comments on this issue in the 1994 Form A rulemaking.) The data provided by EPA to our office from the state of Massachusetts suggests that 5% of the TRI reports include activity (manufacture, process, and use) above 1 million pounds, but below 10 million pounds.
Sincerely,
Jere W. Glover
Chief Counsel for Advocacy
Enclosures:
February 6, 1998 Memorandum to EPA
January 28, 1998 Explanation of Recycling/Energy Recovery
Draft February 6, 1998 "Mini-R" Form
cc: OIRA Desk Officer
ENDNOTES
1. 5 C.F.R. §1320.4(b)(1).
2. EPA Information Collection Request Handbook, Information Policy Branch, Office of Policy, Planning & Evaluation, February 1990, p. 16
3. F.R. §1320.4(b)
4. F.R. §§1320.14(h)(2), and (h)(3).
5. Since the utility of the data collected is dependent on the size of the release, and not the size of the business, we recommend that EPA formulate relief based on the size of the chemical release.