January 13, 2006

Ms. Linda Travers, Acting Assistant Administrator
Office of Environmental Information
Environmental Protection Agency
Mail Code: 28221T
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Attn: Docket ID No. TRI-2005-0073

Re:  Toxics Release Inventory Burden Reduction (Phase II)
Proposed Rule; EPA Docket TRI-2005-0073; 70 Fed. Reg. 57822 (Oct.
4, 2005)

Dear Ms. Travers:

The Office of Advocacy of the U.S. Small Business Administration
is submitting these comments on the Environmental Protection
Agency's (EPA) Toxic Release Inventory (TRI) Burden Reduction
(Phase II) proposed rule.  Advocacy strongly supports the EPA
proposal which provides significant paperwork burden reductions
for small business reporters while maintaining the full integrity
of the TRI database.

In 1991, the Office of Advocacy (Advocacy), by petition,
initiated the rulemaking process that resulted in the
promulgation of the Form A.1  We are pleased that EPA created
this form in 1994, which the agency estimated would result in
several hundred thousand hours in annual paperwork savings.  The
Form A is essentially a short form version of the Form R,
analogous to the IRS forms 1040 and 1040EZ, and just as with the
tax forms, the short form is only available to a subset of filers
with relatively uncomplicated filings.  However, the current Form
A is only available to a narrow subset of the reports and
Advocacy applauds EPA for pursuing an expansion of eligibility
for non-persistent bioaccumulative toxic (non-PBT) chemical
filers from 500 to 5,000 pounds of "annual reportable amount"
(ARA).2 Further, Form A is currently unavailable to thousands of
PBT chemical reporters.  Advocacy endorses EPA's preliminary
decision to extend Form A filing to PBT filers with zero total
releases and less than 500 pounds (PRA).3

Advocacy was established pursuant to Pub. L. 94-305 to represent
the views of small business before Federal agencies and Congress.
Advocacy is an independent office within the U.S. Small Business
Administration (SBA), so the views expressed by Advocacy do not
necessarily reflect the views of the SBA or the Administration.
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
gives small entities a voice in the rulemaking process.  The RFA
requires Federal agencies, such as the EPA, to consider
alternatives to avoid overly burdensome regulation of small
entities.4  Advocacy is also required by Section 612 of the RFA
to monitor agency compliance with the RFA.5

On August 13, 2002, President George W. Bush signed Executive
Order 13272, requiring Federal agencies to implement policies
protecting small businesses when writing new rules and
regulations.6  Executive Order 13272 instructs Advocacy to
provide comment on draft rules to the agency that has proposed a
rule, as well as to the Office of Information and Regulatory
Affairs (OIRA) of the Office of Management and Budget.7
Executive Order 13272 also requires agencies to give every
appropriate consideration to any comments provided by Advocacy.
Under the Executive Order, the agency must include, in any
explanation or discussion accompanying publication in the Federal
Register of a final rule, the agency's response to any written
comments submitted by Advocacy on the proposed rule, unless the
agency certifies that the public interest is not served by doing
so.8

Introduction

In April 2004, the Office of Advocacy released a report by Jack
Faucett Associates (JFA) that researched a number of reforms to
the TRI program that would achieve the dual goals of streamlining
reporting requirements, and preserving the integrity of TRI data.
The report sought to identify reform proposals that would retain
the Form R where needed to ensure the availability of useful
public information while reducing burdens by moving reports of
minimal interest to alternative reporting, such as the Form A.
Among the recommendations made by that report was an expansion of
Form A eligibility to a greater universe of current non-PBT
filers, including consideration of a 5,000 pound annual
reportable amount (ARA) threshold.  Additionally, the report
recommended expanding Form A eligibility to PBT filers under
certain conditions.  Advocacy is pleased that EPA chose to
propose a rule that reflects some of the recommendations in that
report, ensuring that small business will benefit from the
reduction in paperwork requirements, and making TRI reporting
more efficient for the reporters and data users.

EPA estimates the total annual cost savings of the proposed rule
from the PBT and non-PBT Form A expansion at $7.4 million.9
However, industry commenters have long contended that EPA has
been underestimating the costs of complying with TRI,
particularly in recent years.  The Advocacy-sponsored JFA report
cites costs of more than $300 million annually for the TRI
program.10   In addition, facilities bear substantial indirect
costs from `piggyback' requirements associated with a TRI
listing, such as federal storm water regulations and other
federal and state requirements (e.g., state pollution prevention
requirements) triggered by TRI reporting.11  Given the
underestimated costs of preparing the Form R, we believe that EPA
has substantially underestimated the savings from the expanded
use of the Form A.12

In October 2004, E.H. Pechan and Associates, Inc. (Pechan)
completed a study for Advocacy that assessed a number of possible
TRI reform proposals using a risk-based analytical method that
married the EPA TRI database to the EPA Risk Screening
Environmental Indicators (RSEI) Chronic Health Model.13  The
Pechan report expanded upon the earlier JFA report by performing
a more significant analysis on the identified reform proposals
that examined effects on data quality and health risks to local
communities in addition to burden reduction.  The Pechan report
endorsed a number of reforms, including an expansion of the Form
A non-PBT threshold and the extension of Form A filing to a
limited set of PBT reports.  As discussed below, this report
provides a health-based benchmark that validates the approach
taken in the EPA proposal.

TRI Proposal Permits Greater Use of Form A Without Sacrificing
Access to Data
Use of the Form A under EPA's proposal is designed appropriately
for facilities that are zero or micro-releasers.  EPA's reform
proposal will still require detailed data for the reports that
account for 99.9% of the production-related waste data.14  The
establishment of Form A in 1994 successfully preserved access to
information by allowing the use of a simpler form.  The current
proposal extends the same benefits to a larger number of
facilities.  The Form A will continue to inform communities.
With respect to the potential use of TRI data by emergency
responders,  the TRI data was designed only to inform the public
about the risks to the community from the annual "releases".15
There is no relationship between the annual production-related
releases from a factory and the environmental releases when a
tank ruptures in the event of a hurricane, for example.
Emergency responders want to know the identity, quantity and
location of the chemical inventories, not the magnitude of annual
releases.  In contrast, the chemical inventory data reporting
requirement, established in the same 1986 Emergency Planning and
Community Right-to-Know Act (EPCRA)16 as the TRI, provides the
identity, quantity and location of chemical inventories directly
to state and local officials, and was designed specifically for
the emergency responders.  Indeed, local fire departments in the
western Boston suburbs recently said that they rely on the
chemical inventory data, not the TRI.17  EPA's current proposal
does not affect the chemical inventory data used by first
responders.

The Proposed 5000 Pound Threshold for Non-PBT Chemicals Is Based
on a Review of 2002 Data Using the 1994 Final Rule Approach

The EPA is proposing to expand the Form A non-persistent,
bioaccumulative, and toxic (non-PBT) annual reportable amount
(ARA) threshold from the current 500 pounds to 5,000 pounds.
EPA's choice of the proposed 5,000 pound non-PBT ARA threshold is
based on several considerations that were first identified in the
determinations made in the 1994 final rule establishing the Form
A (59 Fed. Reg. 61488, November 30, 1994).  As such, EPA is only
recalibrating the 1994 ARA to a higher threshold, based on a
review of more current data (2002, instead of 1992).

In 1994, the Form A, and the 500 pound threshold, were justified
on the following three bases:

   (1)Chemical reporting on a substantial majority of the
      releases is maintained with the Form A;

   (2)Little production related waste information (approximately
      0.1%) will be excluded from Form Rs; and

   (3)Each Form A would provide the public with a range report,
      that informs the public that total releases, as well as
      total production related waste is below a certain
      threshold.18

EPA used the same three criteria in determining and justifying
the new 5,000 pound threshold.  EPA asserts a strong factual and
legal foundation for the new revisions by using the 1994
approach.  An examination of how the above three findings apply
to the new 5,000 pound threshold indicates the following.  With
regard to the first finding, chemical reporting on a substantial
majority of releases is maintained by requiring the Form A
certification as part of the reporting, just as in 1994.19  With
regard to the second finding on the new threshold, Table 3 of the
preamble to EPA's proposal shows that 99.9 percent of total
production-related wastes will still be reported via Form R, even
if all the eligible Form R non-PBT reporters switch to use of
Form A.20  The 5,000 pound threshold is simply a recalibration of
the 500 pound threshold from 1994, based on the large number of
new chemical reports introduced since 1994 and the continuing
reduction in wastes handled by facilities.  With regard to the
third finding, Form A provides the identical range report
information that the total production related waste is below a
certain threshold.  See Table 1 below for a comparison of the
1994 final rule and the 2005 proposal.

 Table 1.  Comparison of 1994 Form A Final Rule and 2005 Form A
Proposal

                              2005         2005     1994  Final
      EPA Criteria          Proposal     Proposal    Rule 500
                            5,000 lbs      500 lbs  lbs Non-PBT
                             Non-PBT        PBT
 Substantial Majority of       Yes          Yes         Yes
    Releases Captured
 99.9 percent of  Waste        Yes          Yes         Yes
          Data
        on Form R
  Form A - Range Report        Yes          Yes         Yes
         between
Zero and Threshold Amount

Office of Advocacy Supports EPA Proposal to Increase Non-PBT Form
A Reporting Threshold to 5000 Pounds

The change to a 5,000 pound reporting threshold would have little
impact on the risk profile of chemicals reported on Form Rs.
E.H. Pechan & Associates used a health risk-based analysis that
takes into account chemical toxicity and affected population as
well as volume of chemicals released (described earlier in this
letter).  The methodology, which relies on the use of EPA's Risk
Screening Environmental Indicators (RSEI) model, greatly enhances
the ability to determine the value of TRI reports by measuring
how risk levels change as reports are moved from Form R to Form
A.21  The methodology computes the RSEI risk score associated with
all TRI reporting facilities nationwide, using a variety of non-
PBT reporting thresholds.  By comparing these risk scores, it is
possible to characterize the importance of the loss of Form R
information associated with raising the ARA threshold.

The Change in Form A Reporting Threshold Will Not Have a
Significant Impact on Right to Know at the Local Level

The true measure of impact however is whether such revisions
represent significant changes in risks at the local level.  To
assess the local impact of alternative approaches on reported
risks, in 2004 Pechan performed a risk score analysis for the 20
"worst case" counties using 2000 TRI data.  Specifically, Pechan
reviewed the RSEI score results for the top 20 U.S. counties (of
3,142 counties) experiencing the greatest change in RSEI scores
from increasing the non-PBT ARA threshold (Pechan, 2004).  Under
the 5,000 pound threshold only one county, Cook County, Illinois,
accounted for more than 5 percent of the total national change in
risk score (with 6.7 percent of the total).  Four other counties
had between 2 percent of the total and 5 percent of the total and
all other counties had less than 2 percent.  The top 20 counties
accounted for 42.8 percent of the total national change in Form R
reported risk score.  The results under the 2,000 pound threshold
were qualitatively similar, with the top 20 counties accounting
for 43.1 percent of total national reported risk change and no
single county accounting for more than 5 percent.22  Under either
threshold scenario, for 99 percent of all of the nation's 3,142
counties the changes in reported risk are not significant.  Thus,
at the local level, a threshold revision to 5,000 pounds involves
very little change in the potential risk associated with releases
that are being reported on Form R.23

While there has been concern expressed over EPA's estimate (based
on 2002 TRI filings) of the large number of zip codes for which
Form R information will no longer be required, this does not take
into account that the number of Form A eligible facilities is a
direct reflection of their exemplary environmental performance -
their status as zero/micro quantity releasers.  The data
indicates that a large number of manufacturing facilities have
now achieved zero or very low releases, and, therefore, qualify
for the new Form A.  These facilities should be rewarded for
their environmental performance via reduced reporting costs.  As
discussed below, our review of the Form R data that would no
longer be reported indicates that this information is of
negligible value, especially when compared to the value of the
information that EPA will continue to obtain via the required
Form R reporting.

Based on the 2002 TRI, Pechan has identified 663 zip codes for
which all current Form Rs will become Form A eligible at the
5,000 pound ARA threshold.24  It is first important to note that
these estimates will overstate the actual impacts because many
facilities will continue to use Form R regardless of a change in
Form A eligibility.  Also, the great majority of these zip codes
involve reporting for only one or two Form Rs, and by definition,
all of these involve very small quantities.  As displayed in
Table 2, 554 of the total 663 zip codes have only one or two Form
Rs in the 2002 TRI.  Thus, the large number of zip codes that can
convert entirely to Form A is a truly a function of the fact that
more than 550 zip codes have only one or two reports.

 Table 2.  Number of Form Rs Converting to Form As in Zip Codes
Where All Form Rs Convert to Form As at the 5,000 Pound Threshold
                      for Non-PBT Chemicals

Number of Form Rs Converted   Number of Zip
         to Form A                Codes
       ConverteLost
             1                     451
             2                     103
             3                      55
             4                      29
             5                      18
             6                      5
             7                      1
             8                      1

As an illustration, it is instructive to review one state's data.
In the case of Maryland, 15 of the state's 47 zip codes would no
longer have any Form R reports.  However, based on 2003 TRI data,
there were only 29 total Form R reports in these 15 zip codes, a
majority of which reported either zero or very small releases
(less than 50 pounds).25

Expanded Form A Eligibility Would Not Result in a Loss of
Valuable Data

Current TRI data users will be adequately served by the new Form
A reports.  Reporters of  PBTs that had reported zero emissions
into the environment using Form R are now able to convey that
same information with the Form A.  With regard to the non-PBT
forms, despite the fact that the Form A has been in use for the
last ten years, it is not surprising that we have not heard that
the use of the Form A impaired any risk analysis by either
citizens or state or Federal regulators studying toxics releases.
Of course, the fact that TRI analyses naturally focus on the
facilities with significant releases would explain why TRI
analyses are not compromised by the replacement of the Form R
data by the Form A range reports.
     
It is important to reiterate that the greater use of Form A does
not represent a loss of valuable information on chemical
handling.  Instead, Form A provides range estimates (currently
less than or equal to 500 pounds) for the facility's ARA of each
subject chemical.  In selecting the 500 pound ARA in 1994, EPA
stated that certifications in Form A automatically ensure that
the EPCRA "substantial majority" of releases requirement is being
met, because the certification itself provides the information
through range reporting (also allowed in Form R):

     EPA believes that the category and level established in
     this final rule are such that replacement of full Form
     Rs, for these eligible reports, with certification
     statements provides the public with an adequate level
     of information.26

EPA's proposed rule indicates that 99.89 percent of the total
production waste (sum of TRI sections 8.1 through 8.7) that is
reported at a 500 pound threshold will continue to be reported at
a threshold of 5,000 pounds.27  Thus, using the new data to derive
the new ARA, the new Form A will continue to provide the public
with an adequate level of information.

EPA Proposal for PBT Form A Zero Release Reporters Is Consistent
with the 1994 Form A Findings

The proposed rule provides relief for the first time to certain
PBT chemical reporters.  Given the thousands of PBT chemical
reports with zero releases that have been filed every year since
the 2001 reporting year, PBT reporting relief is a subject of
great importance to a large number of TRI reporters.  The PBT
reporting requirement has long been a source of frustration for
TRI reporters in that such a burdensome requirement exists for
facilities with zero releases.  Among certain metals sectors,
reporting of zero releases for chemicals such as lead and lead
compounds is routine.  Although the EPA proposal for PBTs is
limited to zero release reports, Advocacy supports the proposal
and would suggest that EPA consider a revision of the PBT
reportable amount (PRA).

Advocacy suggests that EPA consider a revision of the PRA from
500 pounds to 5,000 pounds.28  In its proposal, EPA limited relief
to zero releasers whose PRA is less than 500 pounds without
analyzing the impacts of alternative PRAs.  However, there are
several hundred additional reports that would benefit from an
increase in the PRA to 5,000 pounds.  EPA can still make the
critical third finding of leaving 99.9 percent of the total waste
quantity reported on Form R (sum of data for sections 8.1 though
8.8), even with a PRA as high as 5,000 pounds.29  EPA should make
this revision because the agency can provide burden relief for
another 477 Form Rs (making a total of 3180 eligible Form Rs)
without compromising community right-to-know.

EPA's proposed PBT Form A is reserved only for facilities that
have no releases to the environment, whether at the facility or
off-site at another facility.  In such cases, the PBT chemical
has no effect on the environment.  The EPA proposal provides
relief for approximately 2,000 facilities with 2,700 PBT
chemicals that are not released to the environment.  As EPA
notes, the proposal also provides the facilities with an
incentive to reduce releases (this is also true for non-PBT
chemicals).  In the case of the PBT chemicals, the chemicals of
highest environmental concern, the facility must achieve zero
releases to qualify for Form A filing.  Advocacy believes that
the detailed long reports should not be required for facilities
that have achieved zero releases at both the facility and any
offsite waste handling facilities.

As addressed above, EPA makes the identical three findings
regarding the non-PBT threshold in 2005 that it performed in the
original promulgation of the Form A in November 1994 (59 Fed.
Reg. 61488).  See Table 1 for a comparison of the 1994 and 2005
findings.  Similarly, in proposing the 500 pound PBT Reportable
Amount (PRA),30 EPA is able to establish the same three findings.
We recount the three PBT findings here:  First, since each
qualifying report represents no release to the environment, there
is no question that a substantial majority of the releases of PBT
chemicals would be subject to reporting, as the statute requires,
since 100 percent of all PBT releases are reported on the full
Form R.  Secondly, over 99.9 percent of all waste-related
activity will continue to be reported on the Form R.31  Third,
each PBT report provides information that total waste-related
activity is less than the PRA of 500 pounds.  As discussed above,
we recommend that EPA adjust its PRA to 5,000 pounds, to be
consistent with the proposed revised non-PBT ARA of 5,000 pounds.

Obviously, shifting to a simpler form will result in some data
that is not reported.  With respect to the Form R PBT data, none
of the details involve releases to the environment, and thus, no
information about community risk is missing.  Secondly, the
remaining Form R data, which primarily involve recycling data,
makes up less than 0.1 percent of all recycling data for all
PBTs.  Thus, Form R would continue to provide information on 99.9
percent of PBT recycling activity nationwide.  Additionally,
these data have minimal risk consequences since current day
recycling activities pose little risk to local communities.

Conclusion

We welcome EPA's proposal to provide significant relief to the
small business community, while maintaining the integrity of a
vital EPA program.

Sincerely,

Thomas M. Sullivan

Chief Counsel for Advocacy

Kevin L. Bromberg

Assistant Chief Counsel for Environmental Law

Attachment: Pechan Memorandum, dated January 12, 2006

ENDNOTES

1 40 CFR 372.95.
2  The ARA is the total amount of a chemical reported by the
filer including chemical releases, recycling activity, energy
recovery, landfilling, or other disposal (sections 8.1 through
8.7 on Form R).
3 The PRA is the is the total amount of a chemical reported by
the filer including chemical releases, recycling activity, energy
recovery, landfilling, or other disposal, and includes one-time
events (sections 8.1 through 8.8 on Form R).
4 Pub. L. No. 96-354, 94 Stat. 1164 (1981) (codified as amended
at 5 U.S.C.  601-612).
5 5 U.S.C.  612.
6 Exec. Order No. 13,272  1, 67 Fed. Reg. 53,461 (Aug. 13, 2002)
("E.O. 13272").
7 E.O. 13272, at  2(c), 67 Fed. Reg. at 53,461.
8 Id. at  3(c), 67 Fed. Reg. at 53,461.
9 70 Fed. Reg. at 57,845 (October 4, 2005).
10 "Proposed Reforms to the Toxics Release Inventory Program:
Streamlining Reporting and Preserving Data Integrity," Jack
Faucett Associates, April 2004, pp. 8-9.
11 Id. at  8-9.
12 EPA has not accounted for the Form A savings that would result
from the reduction in the degree of precision of the engineering
calculations needed to estimate a 5000 pound threshold, instead
of a 500 pound threshold.   In particular, estimating costs for
facilities whose ARA is in the vicinity of 500 pounds or less can
drop dramatically when the ARA threshold is raised to 5000
pounds, especially for the great majority of facilities that do
not change operations substantially from year to year.  Further,
the costs of the recurring year Form A determination can be
reasonable in comparison to the cost of the full Form R for
facilities with an ARA that is a fraction of the threshold.
13 E.H. Pechan & Associates, Inc., "Risk-Based Analysis of Form A
and Form NS Toxics Release Inventory Reform Proposal
Alternatives, Final Report," prepared for U.S. Small Business
Administration, Office of Advocacy, October 2004.  The report
employed data for reporting year 2000.
14 EPA uses the ARA data to define the production-related waste
data.
15 Release is defined in the Emergency Planning and Community
Right-to-Know Act ; 42 U.S.C.  11001-11050 (2005).
16 42 U.S.C.  11001-11050 (2005).
   17 "Proposal to ease EPA rule at issue," Boston Globe, January
5, 2006.

18  "1994 EPA Response to Comments Document, Establishment of
Alternate Threshold," November 1994., at page 52.
   19 See discussion November 1994 EPA Response to Comments
Document, Establishment of Alternate Threshold, at page 54; and
Letter to EPA from Office of Advocacy Chief Counsel, dated
09/02/03, Toxic Chemical Release Reporting; Alternate Threshold
for Low Annual Reportable Amounts; Request for Comment on Renewal
Information Collection:  68 Fed. Reg. 39071 (July 1, 2003), at
page 5.

   20 Preamble Table 3, 70 Fed. Reg. 57843 (October 4, 2005).

   21 The RSEI is a peer-reviewed EPA computer model that uses
TRI data inputs to analyze inhalation and ingestion exposure
pathways and cancer/non-cancer health risks.  The model uses the
reported quantities of TRI releases and transfers of chemicals to
estimate the risk-related impacts associated with each type of
air and water release or transfer by every TRI facility.  The
risk-related impacts potentially posed by a chemical are a
function of chemical toxicity, the fate and transport of the
chemical in the environment after it is released, the pathway of
human exposure, and the number of people exposed.  This
information is used to create numerical values that can be added
and compared to assess the relative risk of chemicals,
facilities, regions, industries, or other factors.  These values
do not provide absolute measures of risk and can only be
interpreted as relative measures that are compared with other
such values in a comparative analysis.

   22 See Tables IV-4 and IV-5 in Pechan, 2004.

23 The national results are consistent with the local discussion
above.  For more details see Pechan, 2004.
   24 EPA's proposal reports 665 such zip codes.  Pechan's
analysis of a similar set of 2002 reporting year data found 663
zip codes.  Comparisons between the two data sets are provided in
the attached Pechan memorandum, "Additional Analysis of TRI Phase
II Proposal," dated January 12, 2006.

25 Nine of fifteen Maryland zip codes with all Form A-eligible
data had total releases of under 50 pounds; three zip codes had
under 1,000 pounds and the remaining three zip codes had under
2,500 pounds (half of the 5,000-pound threshold).
   26 "EPA Response to Comments Document, Establishment of
Alternate Threshold," November 1994. at page 54.

   27 As reported by EPA in Table 3 of the preamble, 70 Fed. Reg.
57822, 57843 (October 4, 2005).

   28 For the underlying analysis, see the attached Pechan
memorandum, "Additional Analysis of TRI Phase II Proposal," dated
January 12, 2006.

   29 Id.

   30 The PRA is defined as the total of the quantities in
entries 8.2-8.8, as explained in the EPA preamble. 70 Fed. Reg.
57822 (October 4, 2005).

   31 For the underlying analysis, see the attached Pechan
memorandum, "Additional Analysis of TRI Phase II Proposal," dated
January 12, 2006.