August 21, 1998
Office of Information and Regulatory Affairs
Office of Management and Budget
Attn: Desk Officer for EPA
725 17th Street, NW
Washington, DC 20503
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 much longer 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 significant 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 Office of Management and Budget (OMB), EPA is directed to develop the least burdensome reporting form to achieve its statutory and regulatory purposes. 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 information collection request (ICR) justification "alternative collection procedures or other actions (e.g. a reporting exemption) that [EPA] will institute to minimize the burden for
small entities." Further, OMB regulations require that the paperwork have "practical utility" 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. 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 merely 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 little environmental or health significance. Thus, streamlined reporting for small sources is not only an appropriate approach, but also a necessary approach for minimizing the reporting burden on both small and large businesses that release small quantities of TRI chemicals.
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 use the Form A (certification form) only 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 an additional 40% of TRI reports, that also reflect small releases, and do not qualify for the Form A. Over one hundred similar comments are found in the earlier rulemaking record which led to the adoption of the Form A in 1994.
In December 1997 and May 1998, two documents were produced that examine alternative methods of revising the Form A to provide additional burden reductions for TRI facilities. In particular, the May 1998 document prepared for the Toxic Data Reporting Committee (TDRC) of the NACEPT Federal Advisory Committee provides the most recent analysis of the regulatory alternatives that might be utilized by EPA. To date, EPA has not yet responded to the alternatives described in this document. The Office of Advocacy recommends that the agency promulgate rulemaking revisions to be effective for the July 1999 reports (1998 reporting year), in order to be effective in the first reporting year for the seven new reporting industries. At a minimum, as part of the paperwork review, EPA needs to specifically respond to the points made in the TDRC paper, the issues raised during the August comments, and previous issues raised in the February paperwork comments by industry that have not yet been addressed.
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 achieve meaningful paperwork reduction for all affected reporters. Indeed, it is our understanding that EPA promised to effectuate a net reduction in paperwork to offset the increased paperwork hours generated by the industry expansion rule. 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. EPA Failed to Address Issues Raised in the February Comments
Comments were filed in February by eight industry commenters. EPA failed to respond in a substantive manner to many of the specific comments, relying primarily on its reponses to the issues in its November 1994 final rule promulgating the Form A. Although the November Response to Comments document does cover much of the same ground, EPA has managed to avoid responding to some basic critical issues, thereby impeding OMB’s ability to undertake the appropriate paperwork approval.
1. EPA Does Not Respond to the "Missing Information" Issue and Therefore Does Not Provide OMB with Adequate Information about the Utility of the Paperwork Required.
As stated above, EPA must establish the "practical utility" of the paperwork required of the respondents. In other words, to the extent that the Form A has "missing information," i.e., information that would be reported on the Form R, but is not reported on the Form A, EPA needs to demonstrate that this missing information, if removed from additional Form R’s, would yield information with "practical utility." Under the current scheme, we assume that EPA believes that the missing information from current Form A’s does not create a significant information deficit for the public. To oppose expansion of the Form A to other Form R’s, EPA would need to demonstrate that this additional "missing information" had some value to the public, i.e. "practical utility."
In our February comments we stated, "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.’" Despite our February comment and those of others that EPA failed to address this issue in its December interim final report, EPA’s new analysis in its Supporting Statement to the ICR again ignores this deficiency. The Supporting Statement refers back to the December report, and the December report simply reports a number of statistics about the missing information, which reveals nothing about the significance of this data, and certainly not its "practical utility." Stating that 1,000 or 5,000 release figures are unreported provides no useful information unless those releases are somehow quantified, compared to the quantities that are reported, or otherwise placed in some context to allow an evaluation. For example, one cannot evaluate the significance of the fact that, under the current regime, 70 chemicals can be reported only on Form A’s, unless you also know that the total waste-related production equals 27, 231 pounds. If one raises the 500 pound threshold for calculating the waste-related production to 5000 pounds, the number of chemicals reported on Form A’s alone rises to 123 chemicals and the total production-related waste amounts to 190,764 pounds. Both of these figures are under 0.001% of the total production-related waste reported in TRI. This is the type of discussion that EPA needs to compose.
More importantly, the new TDRC analysis provides an important new framework for examining these alternatives. Under the current scheme (500 pounds), 99.98% of the waste-related production is reported on Form R’s. Under a 5000 pound scheme, 99.88% of the waste-related production is reported on Form R’s. There appears to be no significant difference (0.1% difference) in the practical utility of the data available between these two schemes. BUT there is a substantial increase in the amount of burden reduction provided between these two schemes. The number of eligible reports for Form A increases from 18,675 to 29,538 (26% to about 41% of all forms), with a commensurate increase in the proposed savings. EPA needs to explicitly address why this simple revision, consistent with its current approach, should not be immediately proposed by the agency. What is the "practical utility" of this data that represents only about 0.1% of all the production-related wastes? How does this compare to the additional reporting costs for the respondents for reports?
2. EPA Fails to Address the "Enhanced Form A"
In addition to failing to address the significance of the "missing information," Advocacy specifically suggested in February using an "enhanced Form A," to provide some information that would replace the "missing information." To the extent one believed that the missing information was significant, we suggested a less costly way, both in February and in the TDRC paper, to capture the essense of that information. We suggested broad range reporting which would identify the disposition of the waste-related
production. EPA has failed to respond to this suggestion, again relying only on its November 1994 analysis, which predates our recent detailed discussion of the enhanced Form A, and predates the figures found in the TDRC analysis. Why is this alternative not worth exploring in an EPA proposal? One subgroup of the TDRC suggested raising the threshold from 500 to 5000 pounds, and requiring a single release figure, which is a very similar idea. What does EPA think of this alternative? OMB requires this information to evaluate EPA’s paperwork compliance.
D. Office of Advocacy’s Specific Changes
In February we outlined six specific changes for the Form A, and provided 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 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.
At this time, we urge the most serious consideration of the most easily justifiable revisions: (1) raising the level of the waste threshold from 500 to 5000 pounds; and (2) raising the alternate threshold amount from 1 million to 10 million pounds.
As stated above, raising the waste-related production threshold a small amount generates a very significant amount of paperwork burden reduction by expanding eligibility from 26% to 41% of all forms. The amount of data "loss" is a mere 0.1% of production-related wastes. EPA has not examined this specific alternative in light of the new data analysis. Also, this is a particularly critical revision for the new industries, because we estimate that, for at least two industries, chemical wholesalers and petroleum marketers, a high proportion (if not the vast majority) of their reports will include air releases of up to 1000 pounds/chemical. An expanded Form A would expand the number of eligible reports, and the increased range would allow these facilities to expend less effort in order to calculate the release figures (because less accuracy would be required in the estimation methodology).
With respect to the ten million pound recommendation, Advocacy reviewed the 1995 Massachusetts data and found that about 5% of the facilities that otherwise qualified for the Form A, processed more than 1 million pounds of the reported chemical. This appears vastly higher (about 900 reports) than the number of ineligible facilities estimated by EPA. We do not believe that 500 or more facilities should be denied the use of the Form A, because they are especially efficient at limiting the amount of wastes to less than 500 pounds, despite the high chemical usage. Firms that manufacture computers or copper wire have no choice but to use copper in immense quantities. They should not be denied the use of Form A because of the agency’s unsupported fear that facilities may submit untruthful certifications about the actual chemical usage. The real enforcement problem is not facilities which mislead the government; the enforcement problem is facilities which should report but do not report at all. EPA’s justification of the 1 million pounds is both arbitrary and inadequate. The Massachusetts data suggests that very few facilities require a threshold above 10 million, and therefore, we suggest that as the revised alternate threshold.
EPA should also incorporate several other changes to the Form A. It should allow facilities to use the "multiple Form A", which permits a facility to list multiple chemicals on a single Form A. This will result in a small amount of burden reduction for some affected facilities. The software should also be revised to accomplish two additional goals: (1) to direct the user simply to the Form A or Form R, with appropriate instruction, and (2) to allow importation of previous year’s data from the Form A. These features will also be helpful to the respondents.
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? Why should EPA be rewarded for its complacency? (Incidentally, we applaud EPA’s recent aggressive efforts to address the outreach problem.) 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’s additional justification is that it has already addressed these issues in November 1994. There are many new alternatives and new analysis, which deserve an EPA response and a review by OMB. The President’s 1994 commitment to burden reduction in the TRI program would remain unfulfilled under EPA’s current plans.
The agency’s final justification is that the TDRC members did not generally favor expansion of the Form A. First, it is premature to use TDRC recommendations in advance of the report being filed. It is not clear to us that the TDRC will formulate recommendations at all. Furthermore, those persons were not truly representative of small business views, nor were they provided adequate time to formulate recommendations. A subgroup that did formulate a recommendation, recommended that EPA expand its exemption to 5000 pounds, and require the report of a release figure. This option was not even addressed by EPA.
IV. Recommendations:
1. As recommended in our February comments, 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. (Note: The Form A rule was promulgated in approximately four months’ time between the proposed and final rules.) EPA still needs to examine the value of the "missing information," and to examine the value of requiring range reporting on the Form A (or other versions of the enhanced Form).
2. OMB should approve the Form A only through November 30, 1998, when a proposed rule revising the scope and format of the Form A should be issued. The proposal must include an significant expansion of the scope of applicability of the Form A through a revision of the waste-related threshold and/or a revision of the elements that comprise the reportable amount calculation. Under the Regulatory Flexibility Act, all significant reasonable regulatory alternatives should either be discussed or co-proposed.
3. The alternate threshold itself should be raised from 1 million pounds to 10 million pounds.
Sincerely,
Jere W. Glover
Chief Counsel for Advocacy
cc: Sandy Farmer, EPA