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[Senate Report 110-253]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 552
110th Congress                                                   Report
                                 SENATE
 1st Session                                                    110-253

======================================================================

 
               TOXIC RIGHT-TO-KNOW PROTECTION ACT OF 2007

                                _______
                                

               December 19, 2007.--Ordered to be printed

                                _______
                                

    Mrs. Boxer, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 595]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 595) to amend the Emergency Planning and 
Community Right-to-Know Act of 1986 to strike a provision 
relating to modifications in reporting frequency, having 
considered the same, reports favorably thereon without 
amendment and recommends the bill do pass.

                 Purpose and Summary of the Legislation

    The purpose of the bill is to require the federal Toxics 
Release Inventory program to collect and provide to the public 
the same amount of information as the program collected and 
provided prior to a recent administrative change and to 
maintain the program's current reporting frequency for 
information.

                  Background and Need for Legislation

Legislative background of the Toxics Release Inventory Program

    In 1984, a toxic chemical released from a U.S. owned plant 
in Bhopal, India killed approximately 3,800 people, according 
to an estimate cited by Union Carbide (there are other 
estimates, most of them higher), and injured thousands of other 
people. Shortly thereafter, a serious chemical release from a 
plant in West Virginia also demonstrated the importance of 
protecting public health from such chemical risks. Spurred on 
by these and other threats and by various state and local 
initiatives, Congress moved to increase protections for public 
and worker safety from chemical threats and to expand the 
public's right-to-know about the storage, use and disposal of 
chemicals in their communities.
    In 1986, Congress enacted the Emergency Planning and 
Community Right-to-Know Act (42 U.S.C. 11001-11050) (EPCRA) 
under Title III of the Superfund Amendments and Reauthorization 
Act (P.L. 99-499). EPCRA's two main goals are to facilitate 
planning for the dangerous release of chemicals and to provide 
the public with important information, which was previously 
unavailable, on toxic and hazardous chemicals in their 
communities. Section 313 of EPCRA created the Toxics Release 
Inventory program (TRI), which requires facilities in the 
manufacturing sector and federal operations to report when they 
release specific quantities of certain chemicals.
    In 1990, Congress enacted the Pollution Prevention Act (42 
U.S.C. 13101 et seq.) to expand the types of reported 
information to include data on reducing the use of dangerous 
chemicals, reducing pollution levels, and expanding the 
public's right-to-know about the production, use, and disposal 
of toxic chemicals. A key aspect of this law was the 
requirement that facilities report the quantities of toxic 
chemicals that they manage in waste and the types of pollution 
prevention activities that they undertake.
    Congress intended TRI to give the public broad access to 
environmental information that it could use to facilitate 
pollution reductions by ensuring industry and government 
agencies are accountable for pollution prevention activities. 
Congress also intended for government and other officials to 
use TRI to better measure the success of public health and 
environmental safeguards. The program was also meant to provide 
an important tool to help various stakeholders work with 
industry to identify ways to reduce pollution.
    Section 313 (h) of EPCRA reflects the broad information 
collection and dissemination authorities Congress intended for 
TRI:
          The release forms required under this section are 
        intended to provide information to the federal, state, 
        and local governments and the public, including 
        citizens of communities surrounding covered facilities. 
        The release form shall . . . inform persons about 
        releases of toxic chemicals to the environment; to 
        assist governmental agencies, researchers, and other 
        persons in the conduct of research and data gathering; 
        to aid in the development of appropriate regulations, 
        guidelines, and standards; and for other similar 
        purposes.
    Facilities submit this information to the Environmental 
Protection Agency (EPA), which compiles the data and puts it 
into a computerized database, known as the Toxics Release 
Inventory. The public has access to this database and the 
underlying data. The types of industries required to report 
include manufacturing, metal mining, coal mining, coal and oil 
burning electrical utilities, hazardous waste treatment and 
disposal facilities, chemicals distributors, petroleum bulk 
storage terminals, and solvent recycling operations.

The Toxics Release Inventory Program helps to prevent and reduce 
        pollution

    Our nation has benefited greatly from using TRI 
information. These benefits inure to individual citizens, 
businesses, investors, labor organizations, public health 
officials, academics, public interest and environmental 
organizations, state, federal and local government agencies and 
others that use TRI. This program provides citizens with 
information that they can use in deciding whether to move their 
families into certain areas, businesses with important 
information on ways to cut costs and reduce pollution, 
investors with key information on potentially risky businesses 
practices, and governments with data that helps to wisely spend 
taxpayer resources.
    In 1991, shortly after EPA implemented TRI, the federal 
General Accounting Office (now, the Government Accountability 
Office) (GAO), investigated the benefits of TRI. The GAO noted:

          Although the inventory has been available only since 
        1989, it has become a valuable source of environmental 
        information. For example, federal and state governments 
        have used the data to enact laws designed to control 
        and reduce toxic emissions. Also, the public 
        availability of the data has prompted some companies to 
        set emissions reduction goals. (General Accounting 
        Office, Toxic Chemicals: EPA's Toxics Release Inventory 
        is Useful but can be Improved, 5, GAO/RECD-91-121 
        (1991).

    Over a decade later, another federal report found a 
continuation of these benefits. A 2003 EPA report summarized 
the following benefits of TRI:
      Communities use TRI data to begin dialogues with 
local facilities and to encourage them to reduce their 
emissions, develop pollution prevention (P2) plans, and improve 
safety measures.
      Public interest groups, government, academicians, 
and others use TRI data to educate the public about toxic 
chemical emissions and potential risk.
      Industry uses TRI data to identify P2 
opportunities, set goals for toxic chemical release reductions, 
and demonstrate its commitment to and progress in reducing 
emissions.
      Federal, state, and local governments use TRI 
data to set priorities and allocate environmental protection 
resources to the most pressing problems.
      Regulators use TRI data to set permit limits, 
measure compliance with those limits, and target facilities for 
enforcement activities.
      Public interest groups use TRI data to 
demonstrate the need for new environmental regulations or 
improved implementation and enforcement of existing 
regulations.
      Investment analysts use TRI data to provide 
recommendations to clients seeking to make environmentally 
sound investments.
      Insurance companies use TRI data as one 
indication of potential environmental liabilities.
      Governments use TRI data to assess or modify 
taxes and fees based on toxic emissions or overall 
environmental performance.
      Consultants and others use TRI data to identify 
business opportunities, such as marketing P2 and control 
technologies to TRI reporting facilities.
    (Environmental Protection Agency, How Are the Toxics 
Release Environment Data Used?, 1-2, EPA-260-R-002-004 (2003).
    EPA's report highlighted the importance of TRI to people in 
communities across the country:
          Citizen activists and community organizations educate 
        their citizens or residents about toxic chemical 
        releases using TRI data, often combining education with 
        a call to action. Some community organizations have 
        used TRI data to initiate discussions with local 
        industries or to call on local and public interest 
        organizations to lobby for their causes. Local public 
        interest organizations improve citizen environmental 
        awareness, encouraging them to become involved in the 
        environmental health of their communities. Members of a 
        local public interest organization can be of technical 
        and legal help to citizens in the field of 
        environmental negotiation. (Environmental Protection 
        Agency, How Are the Toxics Release Environment Data 
        Used?, 3, EPA-260-R-002-004 (2003)).
    Government reports also highlight the importance of TRI for 
businesses:
          For some industries, the creation of the TRI marked 
        the first time that company managers and operators 
        could look closely at the quantity of chemicals being 
        released from their facilities. Initially, some 
        companies expressed surprise at their own toxic 
        chemical release amounts and set goals to improve their 
        environmental performance. Some companies have reduced 
        their toxic chemical releases and increased their 
        efficiency at the same time, leading to an increased 
        profit. (Environmental Protection Agency, How Are the 
        Toxics Release Environment Data Used?, 9, EPA-260-R-
        002-004 (2003)).
          Company officials [have] stated that one key way that 
        pollution prevention improves the bottom line is by 
        reducing production costs. Certain pollution prevention 
        techniques, for example, can help a firm lower its 
        materials cost, improve the efficiency of the 
        production process, or eliminate the costs of treatment 
        and disposal . . . Several firms . . . also cited a 
        firm's sensitivity to its community relations and 
        public image as an important inventive to pursue 
        pollution prevention. (General Accounting Office, 
        Environmental Protection: EPA Should Strengthen its 
        Efforts to Measure and Encourage Pollution Prevention, 
        GAO-01-283, 6 (2001)).
    Organized labor has a long history of advocating for the 
right to know about chemical hazards in the workplace in order 
to increase worker-safety. EPA information also provides a good 
example of workers successfully using TRI to increase safety:
    The Amalgamated Clothing and Textile Workers Union teamed 
up with a Minnesota community and used the TRI data to pressure 
their company to reduce the use of methylene chloride, a known 
health hazard to the workers, and search for safe alternatives. 
Union members and activists pressured the state for tougher 
regulations that would force the company to cut emissions by 
93%.
    (Environmental Protection Agency, Toxics Release Inventory: 
Community Right-to-Know, Using the Toxics Release Inventory 
(2000))
    TRI also benefits government agencies' efforts to protect 
public health. As far back as 1991, the federal Agency for 
Toxic Substances and Disease Registry (ATSDR) used TRI data to 
analyze the present and future impacts of exposure to hazardous 
substances on human health.\1\ EPA uses TRI data to support 
clean air safeguards and to monitor companies' compliance with 
other public health and environmental protections.\2\ TRI helps 
state and federal agencies to better allocate scarce public 
resources to safeguard public health, and to target initiatives 
that seek to help businesses conduct pollution prevention and 
reduction activities.
---------------------------------------------------------------------------
    \1\General Accounting Office, Toxic Chemicals: EPA's Toxics release 
Inventory Is Useful but can be Improved, 22 GAO/RECD-91-121,22 (1991).
    \2\Environmental Protection Agency, Toxics Release Inventory: 
Community Right-to-Know, Using the Toxics Release Inventory (2000).
---------------------------------------------------------------------------
    The following information describes how some state agencies 
have used TRI to reduce pollution:
    The [pollution prevention] Program of the Colorado 
Department of Public Health and the Environment used TRI data, 
in combination with other data about hazardous waste and toxic 
chemical releases to air and water, to identify the ten 
industry organizations responsible for the largest quantities 
of hazardous waste generation or toxic chemical releases in the 
state. This research served as the basis for establishing 
priorities for P2 activities and for distribution of technical 
assistance grants. The report also aided in targeting large 
companies for participation in the ``Governor's [Pollution 
Prevention] Challenge Program'' to reduce toxic chemical 
releases and hazardous waste generation. (Environmental 
Protection Agency, How Are the Toxics Release Environment Data 
Used?, 11, EPA-260-R-002-004 (2003)).
    The [pollution prevention] Division in Georgia's Department 
of Natural Resources used TRI data to identify the technical 
assistance needs of manufacturing sectors generating chemicals 
that pose the greatest relative risk to public health and the 
environment. The Division prioritized chemicals, examined 
manufacturing sectors releasing the highest priority chemicals, 
and identified particular subsectors for further assessment. 
The Division also conducted in-depth manufacturing sector 
assessments to determine which processes produce which wastes, 
what multi-media waste problems exist, what [pollution 
prevention] activities were being undertaken, and what 
additional opportunities might exist. Id. at 12.
    The Florida Waste Reduction Assistance Program provides 
assistance in source reduction and waste minimization to 
facilities handling TRI chemicals. The Program relies on TRI 
and other data to target facilities for the Program. Id. at 12.
    The Minnesota Office of Environmental Assistance reported a 
significant use of pollution prevention measure among the 10 
largest managers of toxic chemicals in the state. Four of the 
10 facilities achieved an overall reduction in chemical usage 
through pollution prevention. (General Accounting Office, 
Environmental Protection: EPA Should Strengthen its Efforts to 
Measure and Encourage Pollution Prevention, GAO-01-283, 5-6 
(2001).
    Under Massachusetts' Toxic Use Reduction Program, reporting 
facilities reduced toxic waste generation by 48 percent from 
1990 to 1998--a decline state officials said could be 
attributed in part to greater use of pollution prevention. Id. 
at 6.\3\
---------------------------------------------------------------------------
    \3\A report by the Toxics Use Reduction Institute, which helps to 
implement the State program, recognizes the cumulative benefits of 
various state and federal programs, including TRI, for the success of 
source reduction and pollution prevention activities. The Massachusetts 
Toxic Use Reduction Institute, Benefit-Cost Analysis of The 
Massachusetts Toxic Use Reduction Act, 3-5 (1997).
---------------------------------------------------------------------------
    A 2003 report from the National Pollution Prevention 
Rountable, partially funded by EPA, describes the myriad 
benefits from 60 state and local pollution prevention 
initiatives across the country. The study found that between 
1990 and 2000, more than 167 billion pounds of pollution were 
prevented.\4\ Additional benefits included the conservation of 
more than 4 billion gallons of water, and cost savings of $404 
million from only just 13 programs with an annual budget of 
$1.9 million.\5\
---------------------------------------------------------------------------
    \4\National Pollution Prevention Rountable, An Ounce of Pollution 
Prevention is Worth Over 167 Billion* Pounds of Cure: A Decade of 
Pollution Prevention Results 1990-2000,4 (2003).
    \5\National Pollution Prevention Rountable, An Ounce of Pollution 
Prevention is Worth Over 167 Billion* Pounds of Cure: A Decade of 
Pollution Prevention Results 1990-2000,4 (2003).
---------------------------------------------------------------------------
    TRI has also made our country a world leader in right-to-
know efforts. EPA reports that TRI has served as a model for 
roughly 30 other nations to enact or consider similar 
programs.\6\ Citizens have also used TRI when lobbying the 
United Nations to promote community right-to-know laws around 
the globe.\7\
---------------------------------------------------------------------------
    \6\Environmental Protection Agency, How Are the Toxics Release 
Environment Data Used?, 14, EPA-260-R-002-004 (2003)).
    \7\Environmental Protection Agency, How Are the Toxics Release 
Environment Data Used?, 14, EPA-260-R-002-004 (2003)).
---------------------------------------------------------------------------

Comprehensive and timely data is critical for the Toxics Release 
        Inventory Program's success

    Common sense and independent evaluations of the TRI program 
tell us that the program's utility is tied to the 
comprehensiveness of its data. In 1991, a GAO report concluded, 
``The inventory would be more useful to regulators and the 
public if it were comprehensive.''\8\ This helps to explain 
Congress' rationale for expanding the program's reporting 
requirements and why EPA has expanded such requirements during 
the program's history.
---------------------------------------------------------------------------
    \8\General Accounting Office, Toxic Chemicals: EPA's Toxics release 
Inventory Is Useful but can be Improved, 22 GAO/RECD-91-121,3 (1991).
---------------------------------------------------------------------------
    The law original required reporting for 313 chemicals or 
categories of chemicals, but gave EPA authority to add or 
eliminate chemicals in response to citizen petitions or on the 
agency's own analysis, consistent with the text and intent of 
the law. The Congressional Research Service found that EPA has 
added about 350 chemicals or categories of chemicals, while 
removing more than 15.\9\ EPA reduced the reporting threshold 
for certain persistent, bioaccumulative, and toxic chemicals on 
October 29, 1999.\10\ The Agency also issued a rule on January 
17, 2001 that reduced the threshold for reporting releases of 
lead compounds.\11\
---------------------------------------------------------------------------
    \9\Congressional Research Service, The Emergency Planning and 
Community Right-to-Know Act (EPCRA): A Summary, 4 (2007)
    \10\64 Fed. Reg. 58665-58753.
    \11\66 Fed. Reg. 4500-4547. However, the then-incoming 
administration delayed this rule's effective date 60 days until April 
17, 2001. 66 Fed. Reg. 10585 (Feb. 16, 2001).
---------------------------------------------------------------------------
    The TRI program also balances these reporting safeguards 
with provisions that ease the reporting burden. For example, 
TRI has a reporting exemption for small businesses with 10 or 
fewer employees and it has a reporting exemption for de minimis 
amounts of toxic chemicals. It allows facilities that release 
500 pounds of toxic chemicals--including substances known to 
cause cancer--to use an expedited form for reporting. The 
program also has several reporting exemptions for different 
uses of chemicals, including janitorial services, maintenance 
activities for facilities and automobiles, personal use by 
employees, certain laboratory services, and certain other 
facilities that use and release toxic chemicals.
    The need for timely data is without question. A right-to-
know program by its very nature requires timely, accurate, and 
consistent data to ensure accountability, track results, and 
provide a usable dataset for comparisons across time and 
between industries or facilities. Business, public health 
officials, the public, government agencies and others rely on 
TRI data as a key tool to accomplish these types of analysis.

EPA's decision to change the Toxics Release Inventory Program

    On October 4, 2005 EPA proposed to modify TRI reporting 
requirements in three ways. EPA, Toxic Release Inventory Burden 
Reduction Proposed Rule, 60 Fed. Reg. 57822 (2005). First, the 
agency proposed to eliminate annual TRI reporting and replace 
it with reporting only every other year. Second, the agency 
proposed to allow facilities to increase--by ten times--the 
amount of toxic chemicals released or managed before the 
facilities had to provide detailed information on these 
activities.\12\ Third, the agency reversed its earlier position 
and proposed to allow less-detailed reporting on persistent, 
bioaccumulative toxins, such as mercury and lead that are used 
by the business but not released into the environment. Id. at 
57839.
---------------------------------------------------------------------------
    \12\EPA proposed to allow facilities that released or managed 5,000 
pounds of toxic chemicals, which are not persistent, bioaccumulative, 
to report to TRI using a Form A, rather than a Form R. Form Rs provide 
more information than Form As, including a description of how the 
facility uses the chemical, the maximum amount of the chemical on-site 
during a year, on-site releases of the chemical (e.g. releases through 
stacks, discharges to streams or rivers, or injection in the ground), 
the methodology used to produce the release estimates, on-site waste 
management activities, including the amounts managed through recycling, 
energy recovery, or treatment, the type of recycling processes used 
(e.g. metal recovery by smelting, solvent recovery by distillation), 
and energy recovery methods (e.g. kiln, furnace, or boiler), waste 
treatment methods, and on-site waste treatment efficiency.
---------------------------------------------------------------------------

Opposition to EPA's proposal

    Federal and state public health officials, states' 
attorneys general, first responders, labor unions, state 
pollution control officials, environmental groups and others 
opposed EPA's proposed reduction in TRI reporting. (See the 
Appendix for some of the documents referred to in this 
paragraph.) In all, 23 state agencies and attorneys general 
sent in comments opposing the proposed changes. EPA's Science 
Advisory Board also expressed concerned over the changes. The 
federal Centers for Disease Control and the federal Agency for 
Toxic Substances and Disease Registry noted that they relied on 
consistent TRI data to monitor and study health effects. The 
Environmental Council of the States opposed EPA's proposal.
    A 2006 analysis of comments submitted to EPA on its 
proposal found:
    EPA received comments from 122,420 individuals and groups. 
The vast majority of these commenters, 122,386 (99.97%), 
strongly opposed the changes, and only 34 commenters (0.03%) 
expressed some degree of support for the proposals. The 
opposition came from over 120,000 average citizens, 23 state 
governments, more than 60 members of Congress, more than 30 
public health organizations, more than 40 labor organizations 
and more than 200 environmental and public interest 
organizations. Support for the proposals came almost entirely 
from companies and industry associations in addition to a 
handful of government agencies and individuals. (OMB Watch, 
Against the Public's Will, 2 (2006)).
    On May 18, 2006 the House of Representatives, in a bi-
partisan rejection of EPA's proposed modifications, adopted an 
amendment 231 to 187 to prohibit EPA from implementing the 
proposed changes. The amendment was sponsored by Reps. Frank 
Pallone (D-NJ) and Hilda Solis (D-CA). In all, 48 Republicans 
joined with 182 Democrats and one Independent to support the 
amendment.
    Despite widespread opposition, EPA issued a rule on 
December 18, 2006 that reduced detailed information provided to 
TRI. EPA, 71 Fed. Reg. 76932 (2006). While EPA dropped its 
proposal to institute biannual reporting, the agency quadrupled 
the amount of toxic chemicals that facilities could release or 
manage and still provide less-detailed information. The rule 
also allowed facilities to provide less-detailed information on 
the management of persistent, bioaccumulative toxins that are 
not released into the environment.

Government Accountability Office analysis of EPA's decision

    The Government Accountability Office (GAO), has 
investigated EPA's activities with the TRI rulemaking, and 
provided the committee with GAO's interim findings on February 
6, 2007. GAO testified that

        late in the (rulemaking) process, senior EPA management 
        directed the inclusion of a burden reduction option 
        that raised the Form R reporting threshold, an option 
        that the TRI workgroup charged with analyzing potential 
        options, had dropped from consideration early in the 
        process. Second, EPA reviewed this option on an 
        expedited schedule that appears to have provided a 
        limited amount of time for conducting various impact 
        analyses. Last, the decision to expedite final agency 
        review, when EPA's internal and regional offices 
        determine whether they concur with the final proposal, 
        appears to have limited the amount of input they could 
        provide to senior EPA management. (John Stephenson, 
        Director, Natural Resources and the Environment, GAO, 
        Environmental Information, EPA Actions Could Reduce the 
        Availability of Environmental Information to the Public 
        (2007)).

    GAO reported that ``the TRI reporting changes will likely 
have a significant impact on information available to the 
public about dozens of toxic chemicals from thousands of 
facilities in states and communities across the country.'' Id. 
GAO estimated that 3,565 facilities ``would no longer have to 
report any quantitative information to TRI'' and ``that 
detailed information from more than 22,000 (reporting forms) 
could no longer be reported to the TRI if all eligible 
facilities choose to use (less detailed reporting forms), 
affecting more than 33 percent of reports in California, 
Massachusetts, and New Jersey.'' Id. ``[S]tates could lose all 
quantitative information about releases of some chemicals, 
ranging from 3 in South Dakota to 60 in Georgia.'' Id. 
Importantly, GAO found EPA's decision could reduce other 
critically important information, including data on facilities' 
efforts to reduce the use of toxic chemicals, recycle toxics, 
and transfer toxic chemicals to other facilities. Id. at 29-31. 
GAO also testified that EPA had overestimated cost savings from 
this proposal. Id.

                      Section-by-Section Analysis

Section 1. Short title

    This section sets forth the title of the bill as the Toxic 
Right to Know Protection Act.

Section 2. Modification of reporting frequency

    This section requires facilities to annually report to the 
Toxic Release Reporting program.

Section 3. Requirements relating to toxic release inventory

    This section requires the Administrator of the 
Environmental Protection Agency to establish the use of Form A 
at a threshold of not greater than 500 pounds for nonpersistent 
nonbioaccumulative and toxic chemicals and prohibits the use of 
Form A for chemicals of special concern.

             Legislative History, Committee Views and Votes

                                HEARING

    On February 6, 2007 the Senate Committee on Environment and 
Public Works held a hearing to examine recent administrative 
decisions, including EPA's proposed changes to TRI.

                            ROLL CALL VOTES

    On July 31, 2007 the committee held a business meeting to 
consider a variety of legislation, including Senator 
Lautenberg's Toxic Right to Know Protection Act (S. 595). The 
committee passed S. 595 on a roll call vote of 10 to 9 (voting 
aye: Senators Boxer; Baucus; Lieberman; Carper; Clinton; 
Lautenberg; Cardin; Sanders; Klobuchar; and Whitehouse. Voting 
nay: Senators Inhofe; Warner; Voinovich; Isakson; Vitter; 
Barrasso; Craig; Alexander; and Bond).

                      REGULATORY IMPACT STATEMENT

    The committee finds that while the legislation would 
increase some administrative burden on private entities, the 
industry-wide costs are estimated to be less than $10 million 
annually, which is well below the annual threshold established 
by the Unfunded Mandates Reform Act of 1995. The committee also 
notes that the Government Accountability Office has questioned 
the Environmental Protection Agency's estimates of burden 
reductions for its rule, which could reduce the potential costs 
of the legislation.

                          MANDATES ASSESSMENT

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee finds that S. 595 contains 
both intergovernmental and private-sector unfunded mandates. 
However, the cost of complying with these mandates will not 
exceed the annual thresholds established under UMRA.

                          COST OF LEGISLATION

    Section 403 of the Congressional Budget and Impoundment 
Control act requires a statement of the cost of the reported 
bill, prepared by the Congressional Budget Office, be included 
in the report.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    S. 595 would repeal the Environmental Protection Agency's 
(EPA's) authority to determine how often owners or operators of 
chemical facilities must submit certain information regarding 
the manufacture or use of toxic chemicals. This legislation 
also would require EPA to establish eligibility thresholds for 
using form-A certification (a less-detailed form used by owners 
and operators of chemical facilities to report on chemical 
releases and waste management under the Toxics Release 
Inventory Program) at not greater than 500 pounds for 
nonpersistent bioaccumulative and toxic chemicals. (Currently, 
form-A certification is allowed even if more than 500 pounds of 
a chemical is released.) Finally, this legislation would 
prohibit the use of this less-detailed statement for any 
chemical identified by EPA as a chemical of special concern.
    Based on information from EPA, CBO estimates that enacting 
S. 595 would have no significant effect on the federal budget. 
CBO estimates that proposed changes in reporting requirements 
would not substantively change EPA's oversight of toxic 
chemical releases and would not significantly affect the 
agency's costs. Enacting this legislation would not affect 
direct spending or revenues.
    S. 595 contains an intergovernmental mandate as defined in 
the Unfunded Mandates Reform Act (UMRA) because it would reduce 
the threshold for reporting chemical releases under the 
Emergency Planning and Community Right-to-Know Act of 1986. 
That change would increase the administrative burden for state 
and local entities required to file such reports with EPA. 
Based on information from EPA, the industry wide cost of the 
new requirements are estimated to be less than $10 million 
annually. Because state and local entities represent only a 
small portion of those costs, CBO estimates that the additional 
costs would not be significant and would not exceed the 
threshold established in UMRA ($66 million for 
intergovernmental mandates in 2007, adjusted annually for 
inflation).
    S. 595 would impose a private-sector mandate as defined in 
UMRA by increasing the administrative requirements for certain 
facilities that report data on chemical releases to EPA. Under 
the bill, those facilities would be required to report chemical 
releases using a longer, more-detailed form. Based on 
information from EPA, CBO estimates that the incremental cost 
to the industry to comply with the mandate would be less than 
$10 million annually. Therefore, the cost of the mandate would 
fall well below the annual threshold established by UMRA for 
private-sector mandates ($131 million in 2007, adjusted 
annually for inflation).
    The CBO staff contacts for this estimate are Susanne S. 
Mehlman (for federal costs), Neil Hood (for the state and local 
impact), and Amy Petz (for the private-sector impact). This 
estimate was approved by Peter H. Fontaine, Assistant Director 
for Budget Analysis.

MINORITY VIEWS OF SENATORS INHOFE, WARNER, VOINOVICH, ISAKSON, VITTER, 
                    BARRASSO, CRAIG, ALEXANDER, BOND

    We write separately to express our disagreement with the 
language and the intent of S. 595, the Toxic Right to Know 
Protection Act of 2007, and to urge the full Senate to reject 
this bill or any measure that seeks to rollback the 
Environmental Protection Agency's Toxic Release Inventory (TRI) 
final rule promulgated in December 2006. This rule was written 
to ease paperwork burdens of small businesses with respect to 
the use of forms required to be submitted under the TRI program 
and does not harm right-to-know.
    First, we agree with the majority about the importance of 
the TRI Program. We also agree that the release forms required 
by TRI are intended to provide important information and data 
to the public regarding releases and transfers of toxic 
substances from industrial facilities. This data serves to 
encourage pollution prevention and reduction activities, as 
well as to facilitate research and inform regulatory processes 
at all levels of government. However, we disagree that the 2006 
TRI rule jeopardizes the TRI program nor do we believe that the 
streamlined reporting requirements provided for by the rule run 
afoul of Congress' original intent.
    EPA took four years to develop the TRI rule and during that 
time engaged stakeholders, including Congress, through multiple 
on-line dialogues, physical meetings, and formal rulemaking 
procedures. Significant changes were made to the content and 
scope of the rule due to the comment from interested parties.
    Opponents of the final December 2006 TRI rule characterize 
it as weakening the public's right to know, eliminating 
disclosure requirements, and allowing facilities to hide the 
amounts of chemicals they may use. Yet, the TRI rule does not 
exempt any facility from reporting its releases. Everyone must 
still report. The rule simply changes the eligibility 
requirements for using the shorter, easier to complete Form A, 
allowing certain smaller reporters to use the less-detailed 
version. Under the new rule, the public will still receive the 
same detailed data on more than 99% of the releases; EPA's 
approach of retaining 99% of the release data in the Form Rs 
was first developed by the Clinton Administration under EPA 
Administrator Carol Browner in the creation of the Form A in 
1994.
    In addition, the only formal study of the effect of this 
new rule on the community right-to-know concluded that the rule 
would not have any significant effect on the TRI data uses.\1\ 
Supporters of S. 595 have provided no evidence to contradict 
this study.
---------------------------------------------------------------------------
    \1\E. H. Pechan & Associates, Inc., ``Review and Analysis of the 
Effect of EPA's TRI Phase II Burden Reduction Proposal on TRI Data 
Uses, prepared for the US Small Business Administration, Office of 
Advocacy under Contract No. SBAHQ-03C0020, June 2007.
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    The rule, in fact, serves to provide a meaningful incentive 
to businesses, particularly small businesses, to reduce 
chemical emissions and increase environmentally preferred 
chemical waste management activities, such as recycling and 
energy recovery. For example, if a facility reduces their 
releases of the environmental substances of special concern to 
zero, the facility is allowed to use Form A to reflect that 
reduction. If they release even one-tenth of a pound of that 
substance, they must use the longer, more complex form. For 
other, less toxic substances, Form A is only available to a 
facility if they reduce their releases to below 2000 pounds and 
only if their total waste does not exceed 5000 pounds. The EPA 
asserts that ``by imposing stringent limits on releases as a 
pre-condition of short-form reporting, EPA is encouraging 
businesses to minimize disposal into the environment.''\2\ We 
agree. This rule provides regulatory relief in exchange for 
superior environmental performance. Further, enactment of this 
bill would deny EPA the opportunity to evaluate and possibly 
improve the environmental incentives that EPA has carefully 
crafted.
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    \2\August 20, 2007 EPA Assistant Administrator and Chief 
Information Officer Molly A. O'Neill letters to Senators Barbara Boxer 
and James Inhofe.
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    Small businesses are disproportionately impacted by 
regulation. The overall regulatory burden in the United States 
exceeds $1.1 trillion.\3\ For firms employing fewer than 20 
employees, the most recent estimate of their regulatory burden 
is $7,647 per year per employee.\4\ EPA estimates that, on 
average, the ``reduction in reporting is about 15 hours for 
each PBT [persistent, bioaccumulative, toxic] report submitted 
on a short form and about 9 hours for a non-PBT chemical.''\5\ 
Proponents of suggest that 15 hours is not a meaningful 
reduction of time. However, the small business community 
ardently disagrees.
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    \3\Thomas S. Sullivan, Chief Counsel for Advocacy, U.S. Small 
Business Administration, Testimony before the Senate Environment and 
Public Works Committee, February 6, 2007.
    \4\Sullivan 4.
    \5\Stephen Johnson, Administrator, US Environmental Protection 
Agency, Testimony before the Senate Environment and Public Works 
Committee, February 6, 2007.

          ``[T]ime spent on completing paperwork is time that I 
        cannot spend on other things. * * * The time that I 
        spend on paperwork is time that is not spent 
        supervising employees, working with customers, and most 
        importantly looking for new business. We face brutal 
        competition from Chinese decorators, and the reality is 
        that paperwork burdens add to our cost of doing 
        business by absorbing my time in particular. EPA 
        estimates in the final rule that I'll save 15.5 hours a 
        year of staff time if I qualify to use the Form A 
        instead of the complicated Form R. That is almost two 
        days of my time which would really help.''\6\
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    \6\Nancy Klinefelter, President, Baltimore Glassware Decorators, 
Testimony before the Senate Environment and Public Works Committee, 
February 6, 2007.

    The TRI rule does not alleviate all the burdens of small 
business; but with it, we believe EPA has taken a carefully 
balanced step in the right direction by relieving some of the 
costs borne by smaller reporting facilities yet retaining the 
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integrity of the TRI program.

                                   James M. Inhofe.
                                   George V. Voinovich.
                                   Larry E. Craig.
                                   John Warner.
                                   Johnny Isakson.
                                   Lamar Alexander.
                                   John Barrasso.
                                   Kit Bond.
                                   David Vitter.
                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT OF 1986

           *       *       *       *       *       *       *

                           42 USCS Sec. 11023

Sec. 11023. Toxic chemical release forms

    (a) Basic requirement. The owner or operator of a facility 
subject to the requirements of this section shall complete a 
toxic chemical release form as published under subsection (g) 
for each toxic chemical listed under subsection (c) that was 
manufactured, processed, or otherwise used in quantities 
exceeding the toxic chemical threshold quantity established by 
subsection (f) during the preceding calendar year at such 
facility. Such form shall be submitted to the Administrator and 
to an official or officials of the State designated by the 
Governor on or before July 1, 1988, and annually thereafter on 
July 1 and shall contain data reflecting releases during the 
preceding calendar year.

           *       *       *       *       *       *       *

    [(i) Modifications in reporting frequency.
        [(1) In general. The Administrator may modify the 
        frequency of submitting a report under this section, 
        but the Administrator may not modify the frequency to 
        be any more often than annually. A modification may 
        apply, either nationally or in a specific geographic 
        area, to the following:
                  [(A) All toxic chemical release forms 
                required under this section.
                  [(B) A class of toxic chemicals or a category 
                of facilities.
                  [(C) A specific toxic chemical.
                  [(D) A specific facility.
          [(2) Requirements. A modification may be made under 
        paragraph (1) only if the Administrator--
                  [(A) makes a finding that the modification is 
                consistent with the provisions of subsection 
                (h), based on--
                          [(i) experience from previously 
                        submitted toxic chemical release forms, 
                        and
                          [(ii) determinations made under 
                        paragraph (3), and
                  [(B) the finding is made by a rulemaking in 
                accordance with section 553 of title 5, United 
                States Code.
          [(3) Determinations. The Administrator shall make the 
        following determinations with respect to a proposed 
        modification before making a modification under 
        paragraph (1):
                  [(A) The extent to which information relating 
                to the proposed modification provided on the 
                toxic chemical release forms has been used by 
                the Administrator or other agencies of the 
                Federal Government, States, local governments, 
                health professionals, and the public.
                  [(B) The extent to which the information is 
                (i) readily available to potential users from 
                other sources, such as State reporting 
                programs, and (ii) provided to the 
                Administrator under another Federal law or 
                through a State program.
                  [(C) The extent to which the modification 
                would impose additional and unreasonable 
                burdens on facilities subject to the reporting 
                requirements under this section.
          [(4) 5-year review. Any modification made under this 
        subsection shall be reviewed at least once every 5 
        years. Such review shall examine the modification and 
        ensure that the requirements of paragraphs (2) and (3) 
        still justify continuation of the modification. Any 
        change to a modification reviewed under this paragraph 
        shall be made in accordance with this subsection.
          [(5) Notification to Congress. The Administrator 
        shall notify Congress of an intention to initiate a 
        rulemaking for a modification under this subsection. 
        After such notification, the Administrator shall delay 
        initiation of the rulemaking for at least 12 months, 
        but no more than 24 months, after the date of such 
        notification.
          [(6) Judicial review. In any judicial review of a 
        rulemaking which establishes a modification under this 
        subsection, a court may hold unlawful and set aside 
        agency action, findings, and conclusions found to be 
        unsupported by substantial evidence.
          [(7)Applicability. A modification under this 
        subsection may apply to a calendar year or other 
        reporting period beginning no earlier than January 1, 
        1993.
          [(8) Effective date. Any modification made on or 
        after January 1 and before December 1 of any calendar 
        year shall take effect beginning with the next calendar 
        year. Any modification made on or after December 1 of 
        any calendar year and before January 1 of the next 
        calendar year shall take effect beginning with the 
        calendar year following such next calendar year.]
      [(j)] (i) EPA management of data. The Administrator shall 
establish and maintain in a computer data base a national toxic 
chemical inventory based on data submitted to the Administrator 
under this section. The Administrator shall make these data 
accessible by computer telecommunication and other means to any 
person on a cost reimbursable basis.
      [(k)] (j) Report. Not later than June 30, 1991, the 
Comptroller General, in consultation with the Administrator and 
appropriate officials in the States, shall submit to the 
Congress a report including each of the following:
          (1) A description of the steps taken by the 
        Administrator and the States to implement the 
        requirements of this section, including steps taken to 
        make information collected under this section available 
        to and accessible by the public.
          (2) A description of the extent to which the 
        information collected under this section has been used 
        by the Environmental Protection Agency, other Federal 
        agencies, the States, and the public, and the purposes 
        for which the information has been used.
          (3) An identification and evaluation of options for 
        modifications to the requirements of this section for 
        the purpose of making information collected under this 
        section more useful.
    [(l)](k) Mass balance study.
          (1) In general * * *

           *       *       *       *       *       *       *

Sec. 11042. Trade secrets

    (a) Authority to withhold information.
          (1) General authority.
                  (A) * * *

           *       *       *       *       *       *       *

    (h) Information on adverse effects.
          (1) In any case in which the identity of a hazardous 
        chemical or an extremely hazardous substance is claimed 
        as a trade secret, the Governor or State emergency 
        response commission established under section 301 shall 
        identify the adverse health effects associated with the 
        hazardous chemical or extremely hazardous substance and 
        shall assure that such information is provided to any 
        person requesting information about such hazardous 
        chemical or extremely hazardous substance.
          (2) In any case in which the identity of a toxic 
        chemical is claimed as a trade secret, the 
        Administrator shall identify the adverse health and 
        environmental effects associated with the toxic 
        chemical and shall assure that such information is 
        included in the computer database required by section 
        [313(j)]313(i) and is provided to any person requesting 
        information about such toxic chemical.

           *       *       *       *       *       *       *

Sec. 11046. Civil actions

    (a) Authority to bring civil actions.
          (1) Citizen suits. Except as provided in subsection 
        (e), any person may commence a civil action on his own 
        behalf against the following:
                  (A) * * *

           *       *       *       *       *       *       *

                  (B) The Administrator for failure to do any 
                of the following:
                          (i) Publish inventory forms under 
                        section 312(g).
                          (ii) Respond to a petition to add or 
                        delete a chemical under section 
                        313(e)(1) within 180 days after receipt 
                        of the petition.
                          (iii) Publish a toxic chemical 
                        release form under [section] 313(g).
                          (iv) Establish a computer database in 
                        accordance with section [313(j)]313(i).
                          (v) Promulgate trade secret 
                        regulations under section 322(c).
                          (vi) Render a decision in response to 
                        a petition under section 322(d) within 
                        9 months after receipt of the petition.

           *       *       *       *       *       *       *

                                  
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