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ENVIRONMENTAL JUSTICE AND THE TOXICS

RELEASE INVENTORY REPORTING PROGRAM:

COMMUNITIES HAVE A RIGHT TO KNOW

HEARING

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND

HAZARDOUS MATERIALS

OF THE

COMMITTEE ON ENERGY AND

COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

H.R. 1055 and H.R. 1103

OCTOBER 4, 2007

Serial No. 110–71

(

Printed for the use of the Committee on Energy and Commerce

energycommerce.house.gov
COMMITTEE ON ENERGY AND COMMERCE

JOHN D. DINGELL, Michigan, Chairman

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, JR., New Jersey

BART GORDON, Tennessee

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

DIANA DEGETTE, Colorado

Vice Chairman

LOIS CAPPS, California

MIKE DOYLE, Pennsylvania

JANE HARMAN, California

TOM ALLEN, Maine

JAN SCHAKOWSKY, Illinois

HILDA L. SOLIS, California

CHARLES A. GONZALEZ, Texas

JAY INSLEE, Washington

TAMMY BALDWIN, Wisconsin

MIKE ROSS, Arkansas

DARLENE HOOLEY, Oregon

ANTHONY D. WEINER, New York

JIM MATHESON, Utah

G.K. BUTTERFIELD, North Carolina

CHARLIE MELANCON, Louisiana

JOHN BARROW, Georgia

BARON P. HILL, Indiana

JOE BARTON, Texas

Ranking Member

RALPH M. HALL, Texas

J. DENNIS HASTERT, Illinois

FRED UPTON, Michigan

CLIFF STEARNS, Florida

NATHAN DEAL, Georgia

ED WHITFIELD, Kentucky

BARBARA CUBIN, Wyoming

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

STEVE BUYER, Indiana

GEORGE RADANOVICH, California

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

MIKE FERGUSON, New Jersey

MIKE ROGERS, Michigan

SUE WILKINS MYRICK, North Carolina

JOHN SULLIVAN, Oklahoma

TIM MURPHY, Pennsylvania

MICHAEL C. BURGESS, Texas

MARSHA BLACKBURN, Tennessee

PROFESSIONAL STAFF

DENNIS B. FITZGIBBONS, Chief of Staff

GREGG A. ROTHSCHILD, Chief Counsel

SHARON E. DAVIS, Chief Clerk

DAVID L. CAVICKE, Minority Staff Director

(II)
(III)

SUBCOMMITTEE ON ENVIRONMENT AND HAZARDOUS MATERIALS

ALBERT R. WYNN, Maryland, Chairman

FRANK PALLONE, JR., New Jersey

BART STUPAK, Michigan

LOIS CAPPS, California

TOM ALLEN, Maine

HILDA L. SOLIS, California

Vice Chairman

TAMMY BALDWIN, Wisconsin

G.K. BUTTERFIELD, North Carolina

JOHN BARROW, Georgia

BARON P. HILL, Indiana

DIANA DEGETTE, Colorado

ANTHONY D. WEINER, New York

HENRY A. WAXMAN, California

GENE GREEN, Texas

JAN SCHAKOWSKY, Illinois

JOHN D. DINGELL, Michigan (ex officio)

JOHN SHIMKUS, Illinois,

Ranking Member

CLIFF STEARNS, Florida

NATHAN DEAL, Georgia

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

VITO FOSELLA, New York

GEORGE RADANOVICH, California

JOSEPH R. PITTS, Pennsylvania

LEE TERRY, Nebraska

MIKE ROGERS, Michigan

JOHN SULLIVAN, Oklahoma

TIM MURPHY, Pennsylvania

JOE BARTON, Texas (ex officio)

PROFESSIONAL STAFF

RICHARD FRANDSEN, Chief Counsel

ANN STRICKLAND, Brookings Fellow

CAROLINE AHEARN, Counsel

RACHEL BLESHMAN, Clerk

GERALD COURI, Minority Counsel

(V)

C O N T E N T S

Page

Hon. Albert R. Wynn, a Representative in Congress from the State of Maryland, opening statement ...................................................................................... 1

Hon. John Shimkus, a Representative in Congress from the State of Illinois,

opening statement ................................................................................................ 3

Hon. Hilda L. Solis, a Representative in Congress from the State of California, opening statement ........................................................................................ 5

Hon. John Barrow, a Representative in Congress from the State of Georgia,

opening statement ................................................................................................ 6

Hon. Tim Murphy, a Representative in Congress from the Commonwealth

of Pennsylvania, opening statement ................................................................... 7

Hon. Frank Pallone, Jr., a Representative in Congress from the State of

New Jersey, opening statement .......................................................................... 8

Hon. Tammy Baldwin, a Representative in Congress from the State of Wisconsin, opening statement ................................................................................... 10

Hon. Gene Green, a Representative in Congress from the State of Texas,

prepared statement .............................................................................................. 11

WITNESSES

Granta Y. Nakayama, Assistant Administrator, Office of Enforcement and

Compliance Assurance, U.S. Environmental Protection Agency ...................... 12

Prepared statement .......................................................................................... 15

Answers to submitted questions ...................................................................... 219

Wade Najjum, Assistant Inspector General, Program Evaluation, Office of

Inspector General, U.S. Environmental Protection Agency .............................. 24

Prepared statement .......................................................................................... 25

Answers to submitted questions ...................................................................... 210

Molly O’Neill, Assistant Administrator, Office of Environmental Information,

U.S. Environmental Protection Agency .............................................................. 28

Prepared statement .......................................................................................... 31

Answers to submitted questions ...................................................................... 232

Thomas M. Sullivan, Chief Counsel, Advocacy, Office of Advocacy, U.S. Small

Business Administration ..................................................................................... 38

Prepared statement .......................................................................................... 40

Answers to submitted questions ...................................................................... 264

John B. Stephenson, Director, Natural Resources and Environment, Government Accountability Office .................................................................................. 48

Prepared statement .......................................................................................... 50

Answers to submitted questions ...................................................................... 257

Hilary O. Shelton, Director, National Association for the Advancement of

Colored People, Washington Bureau .................................................................. 93

Prepared statement .......................................................................................... 95

Robert D. Bullard, Ware professor, Department of Sociology; director, Environmental Justice Resource Center, Clark Atlanta University ....................... 97

Prepared statement .......................................................................................... 99

Answers to submitted questions ...................................................................... 202

Jose Bravo, Communities for a Better Environment; executive director, Just

Transition Alliance ............................................................................................... 107

Prepared statement .......................................................................................... 108

Answers to submitted questions ...................................................................... 197

Andrew Bopp, director, public affairs, Society of Glass and Ceramic Decorators ........................................................................................................................ 110

Prepared statement .......................................................................................... 113

Answers to submitted questions ...................................................................... 193
Page

VI

Alan Finkelstein, assistant fire marshal, Strongsville Fire and Emergency

Services ................................................................................................................. 119

Prepared statement .......................................................................................... 121

Answers to submitted questions ...................................................................... 206

Nancy Wittenberg, assistant commissioner, New Jersey Department of Environmental Protection ........................................................................................... 131

Prepared statement .......................................................................................... 133

Answers to submitted questions ...................................................................... 215

SUBMITTED MATERIAL

H.R. 1055, to amend the Emergency Planning and Community Right-toKnow Act of 1986 to strike a provision relating to modification in reporting

frequency. .............................................................................................................. 148

H.R. 1103, to codify Executive Order 12898, relating to environmental justice,

to require the Administrator of the Environmental Protection Agency to

fully implement the recommendations of the Inspector General of the Agency and the Comptroller General of the United States, and for other purposes. ..................................................................................................................... 151

Keith W. McCoy, executive director, Business Network for Environmental

Justice, letter of October 4, 2007, submitted by Mr. Shimkus ......................... 158

Letter of support from various organizations, September 28, 2007 .................... 182

307 Community, Environment, Faith Investor, Labor, Legal, Public Health,

Public Interest, Research and Scientists Organizations, letter of September

28, 2007 ................................................................................................................. 184

Roxanne Brown, legislative representative, United Steelworkers, submitted

statement .............................................................................................................. 191
(1)

ENVIRONMENTAL JUSTICE AND THE TOXICS

RELEASE INVENTORY REPORTING PROGRAM:

COMMUNITIES HAVE A RIGHT TO KNOW

THURSDAY, OCTOBER 4, 2007

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON ENVIRONMENT

AND HAZARDOUS MATERIALS,

COMMITTEE ON ENERGY AND COMMERCE,

Washington, DC.

The subcommittee met, pursuant to call, at 10:02 a.m., in room

2322 of the Rayburn House Office Building, Hon. Albert R. Wynn

(chairman) presiding.

Members present: Representatives Solis, Capps, Baldwin, Barrow, Pallone, Pitts, Terry, Murphy, and Barton.

Also present: Representative Shimkus.

Staff present: Caroline Ahearn, Ann Strickland, Mary O’Lone,

Dick Frandsen, Rachel Bleshman, Lauren Bloomberg, Jodi Seth,

Jerry Couri, Garrett Golding, and Mo Zilly.

OPENING STATEMENT OF HON. ALBERT R. WYNN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND

Mr. WYNN. Good morning. I would like to call the hearing to

order. Today we have a hearing on H.R. 1103, the Environmental

Justice Act of 2007, introduced by the distinguished vice chair of

the subcommittee, Ms. Hilda Solis, and a hearing on H.R. 1055, the

Toxic Right-to-Know Protection Act, introduced by another distinguished member of this subcommittee, Representative Frank

Pallone.

For purposes of making opening statements the Chairs and ranking members of the subcommittee and the full committee will each

be recognized for 5 minutes. All other members of the subcommittee will be recognized for 3 minutes, however, those members may

waive the right to make an opening statement and when first recognized to question witnesses instead, add those 3 minutes to their

time for questions.

Without objection all members have 5 legislative days to submit

opening statements for the record.

The Chair would now recognize himself for an opening statement.

As I indicated, we are here to hold a hearing on two very important bills, the Environmental Justice Act of 2007, and also the

Toxic Release Inventory Right-to-Know Act sponsored by Mr.
2

Pallone. That is H.R. 1055. It restores the requirements for reporting toxic emissions data from polluting facilities and assures that

the information is reported annually to the EPA.

With respect to environmental justice, many people believe that

the movement began in Warren County, NC, a poor, predominantly

African-American community where I lived as a child. In 1978,

transformer oil contaminated with cancer-causing PCBs was illegally dumped over 210 miles of North Carolina roadsides. The

roadsides were listed as an EPA Superfund site, and EPA approved

a landfill to dispose of the contaminated soils.

In 1982, dump trunks containing this waste rolled into Warren

County and more than 6 weeks of marches and non-violent street

demonstrations followed.

In 1993, the community’s greatest fear was realized, however.

The landfill seal began to fail, threatening to contaminate drinking

water. Decontamination of the landfill was not completed until

2003.

The national attention given to Warren County resulted in a

landmark study. In 1987, the United Church of Christ study,

‘‘Toxic Waste and Race in the United States,’’ found that race, more

than income or home values, was the main predictor for the location of hazardous waste facilities. In fact, people of color were 47

percent more likely to live near hazardous waste facilities than

white Americans.

To focus the Federal Government’s attention on environmental

and human health conditions in minority and low-income communities, in 1994, President Clinton issued the Environmental Justice

Executive order. Environmental justice strategies and policies were

issued, and EPA created the Office of Environmental Justice.

But more than a decade later, where are we? In a 2004 report,

the EPA Inspector General determined that EPA needs to consistently implement the intent of the Executive order on environmental justice. In a 2006 report the EPA Inspector General concluded, EPA needs to conduct environmental justice reviews of its

programs, policies, and activities, and finally in 2005, the Government Accountability Office determined that EPA should devote

more attention to environmental justice when developing clean air

rules.

In the United States today minorities are exposed to higher levels of air pollution. These exposure levels negatively affect the

health of infants, are associated with higher rates of infant mortality, and also result in higher prevalence of death rates from asthma.

For example, Puerto Rican children have an asthma rate 140

percent higher than non-Hispanic white children and AfricanAmericans, only 12 percent of the population, constitute 25 percent

of all deaths from asthma.

H.R. 1103 directs EPA to, one, conduct environmental justice reviews of its program and policies to determine whether they may

have a disproportionately high and adverse human health or environmental affect on minority or low-income populations.

Second, it requires EPA to analyze new rules to identify potential

environmental justice issues to see if such disproportion affects will

be created.
3

Third, it requires EPA to fully respond to public confidence that

raise environmental justice issues, and fourth, requires the EPA to

provide emergency planning procedures. And fifth, creates Congressional reporting requirements to provide for oversight of EPA’s implementation of the Act.

Interesting, to add insult to injury, in December of this past year

EPA adopted a new rule that reduces the amount of information

on toxic chemical management and releases that is provided to

EPA and the public. Under the Emergency Planning and Community Right-to-Know Act of 1986, EPCRA, facilities that manufacture, process, or otherwise use more than the specified amounts of

nearly 650 toxic chemicals are required to report their releases to

water, air, and land. This information is compiled in the Nation’s

Toxic Release Inventory.

However, under EPA’s new rules, for the first time, facilities will

not have to provide detailed information about persistent bio-accumulative and toxic PBT chemicals. PBTs are long-lasting toxics

such as lead, mercury, and PCPs that can build up in the body.

In addition, for non-PBT chemicals, the EPA has significantly

raised the threshold before facilities are required to report detailed

information on releases or waste management. The impact of these

data reporting changes is significant to minority and low-income

communities. According to GAO nearly 22,000 detailed TRI reports

containing information on the amounts of chemicals released and

managed in some 3,500 facilities will no longer be required.

EPA received over 120,000 comments about these changes; 99

percent oppose the changes—including 23 States, 30 public health

organizations, 40 labor organizations, and more than 200 environmental and public interest groups. Even the EPA’s Science Advisory Board objected to the changes.

The Toxic Right-to-Know Protection Act will maintain the annual

reporting requirements and provide the community with information it needs to assess the potential affects of toxic emissions from

polluting facilities.

At this time I recognize my distinguished ranking member, who

is waiting eagerly, for 5 minutes.

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

Mr. SHIMKUS. Thank you, Mr. Chairman. Thanks for recognizing

me, and thanks for listening to me on the floor about one of the

concerns about the hearing.

These are really two distinct issues, and as the Senate had an

opportunity to hold hearings, add comments and ask questions on

environmental justice and the toxic release inventory, and I understand scheduling and committee rooms and all that stuff, but I

don’t think we do justice to both these issues by clomping them and

putting them together.

Having said that, here we are, and we will continue to move forward. We, but we owe it to our constituents and all Americans to

be thorough, balanced, and thoughtful.

First of all, on the H.R. 1055, the Toxic Right-to-Know Act,

amends one sub-section of one section of the environmental law. It

will have impact on thousands of small businesses across this coun-
4

try, many in my district, and several, I suspect, in every member

of Congress’s district.

For example, today on the second panel we will hear testimony

from Andy Bopp, who will be representing Baltimore Glass Decorators. Here is one of the products Baltimore Glass decorates, and I

think there is some in their gift shop, too. This business does not

have the financial or the manpower resources to comply with unnecessary regulations, and as you follow their testimony, we will

see how stringent and just bureaucratic they are.

I worry that small business benefits and employees rise or fall

depending upon the layers of regulations they are subjected to, and

it is our duty to insure that our Nation’s small businesses are not

being crippled for little to no public benefits.

Highlighting this is the troublesome word of ‘‘release.’’ As part of

this program it is extremely misleading and harmful, and I have

got Webster’s Dictionary to—and what happened in the passage of

this law, we redefined the word, ‘‘release,’’ to not mean release.

And I, the one thing I will do when we bring this bill to the floor

is try to clarify what this bill actually does. And I would just refer,

I don’t have time to read the Webster’s Dictionary, but most people

when they hear, release, will think of stuff like emit or discharge.

Well, according to TRI, release could mean manage, use, or recycle. A lot different than emitting or discharging. So that is problematic in the legislation just to begin with.

Does filling out more paperwork improve the health of our constituents? I don’t believe it does, but I am interested to learn more

today about this proposal.

I would also like to highlight the testimony of the first responder

on the second panel, who a fire marshal, Mr. Finkelstein. Sir, first

of all, I would like to thank you for your service, and many of us

work with our local firefighters through the Fire Act Grant, but in

his testimony I think there is going to be an attempt to connect

TRI with emergency planning and responding, but since this data

is 18 months old, any first responder who is using 18-month-old

data to enter a facility has bigger concerns than just TRI. Because

they use other sections, especially sections 311 and 312, for more

appropriate use in managing emergency information and data as

far as entry into facilities.

The other bill on environmental justice, I think we just have a

long way to go to understand, and the Clinton order says let us address this, and the real question is is the EPA moving in a way

in which, that is part of the hearing process today, we will take the

comments and hopefully be able to work with you as we are having

good success in the elemental mercury debates. I hope that we can

move both these pieces of legislation with like effort so that when

we get to the floor, that we have got the big kumbayah movement,

and we can move quicker rather than slower.

And with that I yield back my time.

Mr. WYNN. I thank the gentleman. I am also in favor of

kumbayah.

At this time I would like to recognize the vice chair of the committee, Representative Hilda Solis, who is also the sponsor of H.R.

1103, the Environmental Justice Act, and I would like to com-
5

pliment her for her leadership on this issue over the years. Ms.

Solis, the floor is yours.

OPENING STATEMENT OF HON. HILDA L. SOLIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Ms. SOLIS. Thank you so much, Mr. Chairman, and I thank the

ranking member also.

Believe it or not, this is a very historical moment. In the last several years that I have been serving on this committee, I can’t recall

ever having a hearing on this particular subject. So I applaud our

chairman and thank goodness for the changes that occurred this

last fall because otherwise we wouldn’t be sitting here today. And

I really want to thank the members that worked with us very

closely on this and really salute our chairman for the work that he

has done.

This isn’t just an idea that was hatched yesterday. We have been

talking about environmental justice issues for many, many years,

only we never had the ability to have a formal hearing on it. Today

is that day. So I really want to say how pleased and thankful

many, many communities, communities of color, that are disadvantaged, that are looking for our leadership here in the House of Representatives. And I have worked tirelessly throughout my career

before I came here to the Congress, passing and codifying the Executive order that Clinton had introduced in 1994, back then, to talk

about environmental justice.

And I guess today what we are going to try to find out is how

well the administration has been doing in implementing that Executive order and then focus on this piece of legislation, which I really believe will provide a better path to where we need to go to understand how we implement this Executive order that we hope to

one day soon see codified. And this is the first beginning for that.

And I want to just cite that there are many, many advocates that

are supporting us on this mission today, and according to a recent

report released by the United Church of Christ titled, ‘‘Toxic Waste

and Race at Twenty,’’ people of color make up the majority of those

living in neighborhoods within 2 miles of the Nation’s commercial

hazardous waste facilities. These communities have been under attack under the policies of the present administration, and since

2004, the administration has requested at least a 25 percent cut in

the environmental justice budget.

And in early 2005, the EPA released a draft strategic plan on environmental justice, which had disregarded race, of all things, race,

as a consideration for determining environmental justice, in direct

contradiction to the Executive order. Despite reaffirming its commitment to environmental justice in November 2005, in this memo,

the administration finalized weakening changes to the toxic release

inventory program in December 2006.

A proposed rule on locomotive emissions released this April failed

to mention environmental justice even one time, despite the promises to include environmental justice considerations in proposed

and final rules. In 2004 the IG reported that EPA had not consistently implemented the Executive order, and in 2006 reported that
6

the EPA did not know the impact, the impact of these policies and

what they were having on environmental justice communities.

In 2005, the GAO found that EPA failed to consider the impact

of its air regulations on communities of color and underrepresented

areas. And, during budget hearings in March, Acting Inspector

General Roderick testified that the EPA had yet to establish a plan

of action for implementation of recommendations on environmental

justice.

Absent a real commitment to environmental justice, the health

and well being of our communities will continue to suffer. H.R.

1103 and H.R. 1055 will do better for the health of all of our communities, regardless of where you live. H.R. 1103 will significantly,

in my opinion, advance environmental protections in communities

of color and low-income communities by requiring the implementation of the Executive order and the implementations of recommendations that go along with that in the IG and the GAO report.

More than 50 organizations and Congress are on record in support of that Executive order, and it is time that we give real protections to our communities by codifying this legislation. We must reinforce the community right to know by reinstating the Toxic Release Inventory Program, a successful program for more than 21

years.

And I yield back the balance of my time.

Mr. WYNN. I thank the gentlelady, and again, compliment and

commend her for her passion and her leadership on this issue. I

think she is right, we wouldn’t be here without her efforts, and I

am very pleased that we are here today.

At this time I would be happy to recognize Mr. Barrow, the distinguished gentlemen from Georgia.

OPENING STATEMENT OF HON. JOHN BARROW, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA

Mr. BARROW. Thank you, Mr. Chairman, and I, too, want to commend my colleague and my hero, Ms. Solis, for her authorship of

the Environmental Justice Act for 2007, my friend and colleague,

Mr. Pallone. He is not my hero yet, but he is working on it. I appreciate your authorship of the Toxic Right-to-Know Act.

Mr. Chairman, thank you for calling this hearing. There is more

than one way to repeal a law. There is more than one way to repeal

an Executive order. There is the up and up way, out front and in

the open where everybody can see it, and there is another way, by

neglect. You can repeal a lot of things by neglect. I feel like there

has been some neglect of Congress’s responsibility in overseeing the

implementation of the Executive order in question. There has been

some neglect on the part of the executive branch of the Government in implementing the order, and this hearing is an opportunity

for us to shine a light on that and try and get things going back

in the right direction.

I know a little something about this. Back in Augusta, GA, we

have a community that is living smack dab on top of a brownfield.

Hyde Park in Augusta is an area that is on the industrial edge of

town, and there are people who are deeply tied to the land. They

got their lifetime’s investment in the homes in that area, and they
7

don’t know whether to stay, they don’t know whether to leave, we

haven’t got the money to buy them out, a lot of folks don’t want

to be bought out. They are attached to the community and the

sense of community they have and yet they are stuck with all of

these issues.

And I sort of feel like it is important for us to kind of add another element to this, try to build some support, but getting going

on this, you realize this isn’t just some vast environment conspiracy against poor folks.

You know, economic development in general fuels environmental

injustice.

There is a penalty to pay for going first in economic development.

In my part of the country, in Augusta, for example, it was an industrial crossroads. It was a commercial town. The railroad came.

After the railroad, at the point where the river crosses the fall line,

and there is a lot of business to be done, and a lot of folks did business in the old days without much regard to the environmental

consequences. And as a result that area is pretty fouled up, and the

economic development just naturally moves onto the next area. It

moves onto the greenfield just beyond. And it leaves these

brownfields back to fester and to swelter and indecision and indifference.

The point I want to emphasize is not only is that wrong, not only

is it unjust, it is expensive. It is wasteful. There are reasons that

some places develop first. There are reasons why economic and

transportation infrastructure grows there, and it is there. It is incredibly wasteful for us to leave areas basically undevelopable or

unusable and to move onto the next greenfield. It is expensive, because it adds to the transportation costs for all concerned, it leaves

these pockets of economic stagnation behind. All that adds to the

cost of doing business for everybody.

And so one thing I want to try and add to the mix as we talk

about the injustice of this, is the stupidity of it. It is like the

French diplomat said, it is worse than a sin. It is a mistake. And

what I think we ought to recognize is cleaning up the mess that

has been made and stopping the messing from going on any further

is not only the right thing to do, it is the smart thing to do. And

I hope we can focus on that and build support for this, because we

got huge economic development potential right in these brownfield

backyards of ours.

And with that, Mr. Chairman, I thank you again for your leadership on this issue, and I yield back.

Mr. WYNN. I thank the gentleman from Georgia.

At this time I would recognize the gentleman from Pennsylvania,

Mr. Murphy.

OPENING STATEMENT OF HON. TIM MURPHY, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA

Mr. MURPHY. Thank you, Mr. Chairman. I was on the floor giving a speech, and I appreciate your indulgence in allowing me to

be a few minutes late.

The issue of environmental justice brings to light a community

in my district, Jeannette, PA, once home to a thriving glass indus-
8

try, where some years ago someone bought that plant, and it remains a rusted heap that is surrounded by an area that is becoming less and less desirable for people to live there.

Low-income families face in their backyards an area that is soon

to be high in a number of pollutants in this brownfield, and nothing is done about it. It is a place that I think breeds less economic

development and poverty rather than being an economic engine for

that embattled community.

That is why legislation that looks at environmental justice is so

important. We have to recognize a responsibility over time for

those who are involved with development and manufacturing to

make sure we are doing all we can to keep that environment clean,

create jobs, and make sure that we understand the long-term legacy of responsibility to the communities that those are in.

Today we are also going to be dealing with some issues involving

the burden of paperwork, and I know that we are going to have

people of divergent opinions on that, but it is important for the future of all business, small and large, that EPA is working with employers to making sure that we find ways that work towards keeping our communities and our air and our soil and our water clean

but also working towards those, working with those industries so

that we find ways of making sure we achieve that.

The issue is to keep the air, the water, the land clean and not

just to create more rules and not just to create mounds of paperwork and polluting our desks with paperwork. Let us find ways of

solving these problems so we can really work towards the protection of our environment and our communities and work towards

other jobs.

And I yield back my time, Mr. Chairman.

Mr. WYNN. I thank the gentleman. At this time it gives me great

pleasure to recognize a gentleman from New Jersey, Mr. Pallone,

who is a leader on these issues and is the author of H.R. 1055,

Toxic Right-to-Know Protection Act.

Mr. Pallone.

OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY

Mr. PALLONE. Thank you, Mr. Chairman, and I am trying to be

good this morning but with the other side but I just want to commend you because the fact of the matter is that we couldn’t have

even had a hearing on these issues in the previous Congress, and

I am not just saying that to be bad, because I often requested this

and other hearings when I was the ranking member, and we

weren’t able to get them. In fact, it was very difficult, even impossible to get somebody from the EPA to come in and be questioned

at all because for whatever reason the previous majority just didn’t

want them to be questioned. And I will leave it at that, but I do

want to mention that, because I think it is important that under

your leadership we are able to do this today.

I wanted to focus on the Toxic Release Inventory issue and its

relationship to environmental justice. Toxic Release Inventory or

TRI was actually authored by my Senator, Frank Lautenberg, of

New Jersey, and passed into law in 1986, as part of the Emergency
9

Planning and Community Right-to-Know Act or EPCRA. After a

tragic disaster at a Union Carbide facility in Bhopal, India, that

killed thousands of people, Congress passed it to ensure that communities know how much the most dangerous industrial chemicals

are being released into the air, water, and the ground, and for a

decade it worked.

However, in December 2006, the EPA announced final rules that

loosen reporting requirements for the TRI. With these rules, the

Bush administration has undermined this critical program in two

ways. First, it eliminates detailed reports for more than 5,000 facilities that release up to 2,000 pounds of chemicals every year.

And second, it eliminates detailed reports from nearly 2,000 facilities that manage up to 500 pounds of chemicals known to pose

some of the worst threats to human health, including lead and

mercury.

Now, this new rule adversely affects communities around the Nation. Without accurate and detailed TRI data, communities have

less power to hold companies accountable and make informed decisions about how toxic chemicals are to be managed. As the GAO

said in a recent report, and I quote, ‘‘EPA’s recent changes to the

toxic release inventory significantly reduce the amount of information available to the public about toxic chemicals in their communities.’’ The changes mean that over 3,500 facilities nationwide, including more than 100 in my State, will not have to submit detailed information about their chemical use. In 75 counties around

the country communities will no longer have access to detailed information about the status of toxic chemicals in their backyards.

The bottom line, Mr. Chairman, is that EPA’s TRI Burden Reduction Rule makes less information available that was previously

available to the public. Now, this is all about right to know, which

to me is so important. Communities have a right to know what

kinds of chemicals are being released in their backyards. This information was also useful to workers who could be affected on the

jobsite and first responders who need to plan for incidents at specific high-risk facilities.

It is also an environmental justice issue. According to the GAO

report many of the facilities that will no longer be reporting detailed toxic and chemical release info, are located in low-income

and high-minority areas, and with that in mind I look forward to

hearing from EPA today on how much analysis went into the agency’s conclusion that the new rule would not, and I quote, ‘‘disproportionately impact minority or low-income communities.’’

I believe that today’s testimony by GAO strongly rejects such a

notion. And in response to this ill-advised and potentially harmful

rule and process in which it was finalized, myself and Congresswoman Solis, because I know she is a co-sponsor, and she has had

a lot to do with this, we introduced together the Toxic Right-toKnow Protection Act, and that Act codifies the stronger reporting

requirements that were in place before the Bush administration

weakened them late last year by codifying these requirements.

Neither the current administration nor future administrations,

because I don’t trust anybody in the future either, could again

change the guidelines without the approval of Congress.
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And I look forward to hearing from our witnesses about this

issue. But thank you, again, Mr. Chairman, for even having this

hearing. I do appreciate it.

Mr. WYNN. Thank you, Mr. Pallone, and you were not being bad.

I do want to, again, compliment you for your leadership on this

particular issue. It is a critical and important thing. You have done

a great job over the years.

At this time I would recognize the gentleman, Mr. Terry, for an

opening statement.

Mr. TERRY. Thank you, Mr. Chairman. I wish to waive to reserve

enough time for questions.

Mr. WYNN. All right. Thank you. At this time I would like to recognize Ms. Baldwin.

OPENING STATEMENT OF HON. TAMMY BALDWIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN

Ms. BALDWIN. Thank you, Mr. Chairman. I am very pleased that

the committee is holding this hearing today on two very important

measures, and I want to begin by commenting on H.R. 1055 and

say that I am encouraged that today we will be examining the

EPA’s decision to weaken the community right-to-know rules.

Congress, as we have just heard discussed, created the Toxic Release Inventory Program under the premise that communities

should know what toxic chemicals are being dumped in their backyards. Over the years the program has also been effective in protecting public health and urging businesses to voluntarily reduce

chemical releases, as no business wants to be on the top of an EPA

polluter list.

Given the successful nature of the program, it is really difficult

for me to comprehend EPA’s justification for altering the TRI rules.

Yet, in changes that the EPA argues were necessary to ease paperwork, the agency has weakened reporting requirements.

The result is a quadrupling of the amount of toxic pollutants that

companies can release before they have to tell the public. In my

home State of Wisconsin EPA’s rule allows 113 facilities to no

longer have to notify my constituents of their harmful releases.

Clearly, at stake is our public health, but EPA’s rule also jeopardizes our communities’ access to critical information used by emergency responders, academics, public interest groups, State agencies, and labor groups among others.

Emergency responders, for instance, use this data to protect the

public against chemical spills or situations where toxic waste is released into the water supply. Similarly, public interest groups use

the data to push for environmental policy changes, and labor

groups use the data to evaluate hazards to workers.

TRI data is so important that the EPA should be evaluating

ways to refine the data and make it available faster, rather than

coming up with ways to stifle the information and protect the polluters. At least 305 community, environmental, faith-based, investor, labor, public health, and science organizations have called upon

Congress to restore toxic chemical reporting.

And I am hopeful that today’s hearing will highlight the importance of a strong TRI and demonstrate the need for passage of Con-
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gressman Pallone’s Toxic Right-to-Know Protection Act so that the

EPA can return to an agency that protects the public interest rather than the polluting businesses.

I also want to commend Congresswoman Solis’s efforts to bring

environmental justice to those in minority and low-income populations who disproportionately bear the burden of our Nation’s pollution. These pollutions face higher rates of low birth weight, greater risk of asthma, and increased occurrences of infant mortality.

The good news is that together focused attention, increased research, and public access to information can all help improve the

environment and human health conditions facing minority and lowincome communities. In the end environmental justice is not just

about cleaning up toxins, but rather it is about insuring a healthy

and bright future for generations to come.

So thank you, Mr. Chairman, for this very important and historic

hearing, and I yield back the balance of my time.

Mr. WYNN. Thank you very much, Ms. Baldwin. I appreciate

your comments and your insightful remarks.

At this time the Chair would recognize Mr. Pitts from Pennsylvania.

Mr. PITTS. I will waive.

Mr. WYNN. The gentleman has waived. Are there any further

opening statements?

If not, at this time the Chair would like to acknowledge a distinguished visitor from Maryland who has joined us for today’s hearing. He is Division Chief Michael Love of the Montgomery County

Fire and Rescue Service.

Chief Love, we are delighted to have you here. In addition to

service on Montgomery County’s Fire and Rescue Service, Chief

Love is also a member of the Local Emergency Planning Commission, which is the local government organization that receives TRI

data and uses it in planning for chemical spills, accidents, and

other emergencies.

Thank you again for being with us.

That concludes all opening statements. Other statements for the

record will be accepted at this time.

[The prepared statement of Mr. Green follows:]

PREPARED STATEMENT OF HON. GENE GREEN, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF TEXAS

Thank you, Mr. Chairman, for holding this hearing on the Environmental Justice

Act of 2007 and the Toxic Right to Know Act.

My district includes part of Houston, the fourth largest city in the United States,

and over 65 percent of the population is Hispanic.

The 29th district also includes the Port of Houston and is the home of many petrochemical companies.

Both of this bills that we are discussing today are of importance to the 29th district.

Houston has its fair share of environmental problems. We have higher than average levels of air toxics, which may be related to adverse health effects in the population.

We also have our fair share of environmental waste sites. On September 29, an

abandoned waste site on the San Jacinto River that is leaking toxic levels of dioxin

into Galveston Bay was placed on the National Priority List short list.

I have worked in conjunction with the EPA, the State of Texas, and the Texas

Commission on Environmental Quality to have the site placed on the National Priority List.
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I am hopeful that we will be able to work together and begin cleaning up this

site soon.

I support the industry in my district. They employ many of my constituents. However, letting communities know what chemicals are being released and disposed of

in their backyard is a responsibility these companies must uphold.

The current Toxic Release Inventory Program reporting requirements, in an effort

to reduce paperwork, have the potential to endanger communities such as my own.

Companies that work with chemicals should be required to report in detail their

use and disposal of these chemicals.

Also, the EPA has a responsibility to practice environmental justice. Just because

my constituents live close to where they work does not mean they should suffer from

health effects.

Communities that are heavily minority populated and lower income areas should

not be subjected pollution just because of their race and economics.

I support both of these bills and I urge my colleagues to do the same.

Thank you Mr. Chairman.

Mr. WYNN. We are going to move into the testimony of our witnesses. I think we have an excellent panel. The first panel is a governmental panel, and I would like to introduce them at this time.

First we have Mr. Granta Nakayama, Assistant Administrator,

Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency.

We also have Mr. Wade Najjum, Assistant Inspector General for

Program Evaluation, Office of Inspector General, U.S. Environmental Protection Agency.

We have with us also Ms. Molly O’Neill, Assistant Administrator,

Office of Environmental Information, U.S. Environmental Protection Agency.

And also we have with us Mr. Thomas, the Honorable Thomas

Sullivan, Chief Counsel for Advocacy, Office of Advocacy, U.S.

Small Business Administration.

And Mr. John B. Stephenson, Director, Natural Resources and

Environment, Government Accountability Office.

Thank you all for coming. We are going to now have 5 minutes

opening statements from the panel, and your prepared testimony

in full will be, which you submitted in advance, will be made a part

of the hearing record.

Mr. Nakayama.

STATEMENT OF GRANTA Y. NAKAYAMA, ASSISTANT ADMINISTRATOR, OFFICE OF ENFORCEMENT AND COMPLIANCE ASSURANCE, U.S. ENVIRONMENTAL PROTECTION AGENCY,

WASHINGTON, DC

Mr. NAKAYAMA. Thank you. Good morning, Chairman Wynn,

Ranking Member Shimkus and Vice-Chair Solis, and distinguished

members of the subcommittee. I am Granta Nakayama, Assistant

Administrator for the Office of Enforcement and Compliance Assurance at the United States Environmental Protection Agency. My office is responsible for enforcing the Nation’s environmental laws, as

well as serving as EPA’s National Program Manager for environmental justice.

Thank you for inviting me to the hearing today on environmental

justice legislation including the pending bills, H.R. 1055 and H.R.

1103, the Environmental Justice Act of 1007. I am pleased to discuss the environmental justice accomplishments of the agency,
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what we have learned from our efforts, and how we will continue

to pursue the cause of environmental justice.

Insuring environmental justice means not only protecting human

health and the environment for everyone but also insuring that all

people are treated fairly and given the opportunity to participate

meaningfully in the development, implementation, and enforcement

of environmental laws, regulations, and policies.

EPA has learned that addressing environmental justice issues is

everyone’s shared responsibility. We also recognize that environmental justice issues are complex and multi-faceted. While no single tool or approach along may provide the solution, EPA continues

to believe that using the range of our existing statutory, regulatory,

and enforcement tools for protecting the environment and public

health is a sound approach. These tools coupled with building the

capacity of communities and other stakeholders to participate

meaningfully in the environmental decisions that affect them is an

effective way to protect the health and environment of all our Nation’s people and communities.

EPA is committed to comprehensively integrating environmental

justice considerations into its programs, policies, and activities.

EPA is the lead for implementing Executive order 12898, Federal

actions to address environmental justice in minority populations

and low-income populations. This Executive order directs Federal

agencies to make achieving environmental justice part of its mission. EPA works to comply with this Executive order and has taken

significant and meaningful steps to integrate environmental justice

into its mission.

In 2005, Administrator Johnson reaffirmed EPA’s commitment to

EJ. The Administrator also identified national EJ priorities such as

reducing asthma and elevated blood lead levels. For 2008, the

agency’s national program guidance and strategic plans are being

examined to identify activities, initiatives, and strategies for integrating environmental justice into planning and budgeting documents.

EPA’s Inspector General recently identified the need for EJ program reviews. The agency agreed, and we will begin conducting

those reviews in March 2008. The EPA renewed the charter of the

National Environmental Justice Advisory Council for 2 years so

that EPA will continue to receive valuable advice and recommendations from its stakeholders.

Since 1993, EPA has awarded more than $31 million in grants

to more than 1,100 community organizations and others to take an

active role in our Nation’s environmental stewardship. These environmental justice grants promote community empowerment and capacity building essential to maximize meaningful participation in

the regulatory process.

Just yesterday EPA announced it has awarded $1 million in environmental justice small grants this year to 20 community-based

organizations to raise awareness and build their capacity to solve

local environmental and public health issues.

EPA is making significant headway on the road to environmental

justice. In moving forward we will complete the Environmental

Justice Program reviews so that we can appropriately evaluate the

effectiveness of EPA’s actions for environmental justice. We will
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also finalize the Environmental Justice Strategic Enforcement Assessment Tool, or EJ SEAT, to enhance the EPA Office of Enforcement and Compliance Assurance’s ability to consistently identify

potential environmental justice areas of concern and assist in making effective enforcement and compliance assurance resource deployment decisions. We will evaluate the tool, its strengths, and

limitations.

In conclusion, I believe we are on the right track and have the

statutory authorities and needed flexibilities to identify problems

and tailor solutions that result in improvements in health and environmental quality for all.

I look forward to working with Congress to insure the continued

progress towards this goal. I want to personally thank you, Chairman Wynn, for allowing me to appear before you on behalf of the

EPA. Thank you for holding this hearing on this very important

topic, environmental justice, and I would be happy to take any

questions.

[The prepared statement of Mr. Nakayama follows:]
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Mr. WYNN. Thank you very much, Mr. Nakayama.

Let us see. Mr. Najjum, I believe you are next.

WADE NAJJUM, ASSISTANT INSPECTOR GENERAL, PROGRAM

EVALUATION, OFFICE OF INSPECTOR GENERAL, U.S. ENVIRONMENTAL PROTECTION AGENCY

Mr. NAJJUM. Good morning, Mr. Chairman and members of the

subcommittee. I am Wade Najjum, Assistant Inspector General for

Program Evaluation with the EPA Office of Inspector General. I

am pleased to be here today to discuss the OIG’s work on how EPA

has incorporated environmental justice within its programs and activities.

Over the past 5 years, the OIG has been examining EPA’s environmental justice activities as part of our strategic plan to review

how EPA fulfills its responsibilities. We have issued two reports

specifically dealing with EPA implementation of environmental justice reviews.

In 2006, we completed our most recent evaluation of whether

EPA program and regional offices had performed environmental

justice reviews of their programs, policies, and activities. We

sought to determine: if there had been clear direction from EPA’s

senior management to perform environmental justice reviews; if

EPA had performed these reviews; and if EPA had adequate guidance to conduct these reviews or if there was a need for additional

guidance or protocols.

We concluded that EPA program and regional offices have not

routinely performed environmental justice reviews. Therefore, EPA

could not determine whether its programs have a disproportionately high and adverse human health or environmental effect on

minority and low-income populations. We were given multiple reasons why the reviews were not performed, including: the absence

of a specific directive from EPA management to conduct such reviews; a belief by some program offices that they are not subject

to the order since their programs do not lend themselves to reviewing impacts on minority and low-income populations; and uncertainty about how to perform the reviews.

We made four recommendations to EPA to address these issues:

require program and regional offices to determine where environmental justice reviews are needed and establish a plan to complete

them; ensure that these reviews include a determination if there is

a disproportionate impact on minority and low-income populations;

develop specific review guidance; and designate a responsible office

to compile the results of these reviews and make recommendations

to EPA senior leadership. EPA agreed with our recommendations

and established milestones for completing those actions.

In our 2004 review, we reported on how EPA was integrating environmental justice into its operations. Specifically, we sought to

determine: how EPA had implemented the order and integrated its

concepts into regional and program offices; and how were environmental justice areas defined at the regional levels and what was

the impact.

We concluded that EPA had not fully implemented the order and

was not consistently integrating environmental justice into its dayto-day operations at that time. EPA had not identified minority
25

and low-income communities, or defined the term ‘‘disproportionately impacted.’’ In the absence of environmental justice definitions, criteria, or standards from EPA, many regional and program

offices individually took steps to implement environmental justice

policies. The result was inconsistency in environmental justice actions across EPA regions and programs. Thus, how environmental

justice action was implemented was dependent, in part, on where

you lived.

We made 12 recommendations to EPA to address the issues we

raised. EPA disagreed with 11 of our 12 recommendations. EPA did

agree to perform a study of program and regional office’s funding

and staffing for environmental justice to ensure that adequate resources were available to fully implement its environmental justice

plans. EPA completed that study in May 2004.

In the interest of objectivity I should also say that since the

issuance of our reports, EPA has taken some positive steps to address environmental justice issues. However, we think EPA recognizes that more work needs to be done, particularly in its efforts

to integrate environmental justice into its decision making, planning, and budgeting processes. Also, EPA still needs broader guidance on environmental justice program and policy reviews, which

EPA acknowledges is not in place.

Thank you for the opportunity to testify before you today. I

would be pleased to answer any questions you may have.

[The prepared statement of Mr. Najjum follows:]

STATEMENT OF WADE T. NAJJUM

Good morning Mr. Chairman and members of the subcommittee. I am Wade

Najjum, Assistant Inspector General for Program Evaluation with the U.S. Environmental Protection Agency (EPA) Office of Inspector General (OIG). I am pleased to

be here today to discuss the OIG’s work on how EPA has incorporated environmental justice within its programs and activities. EPA has made some progress in

these areas over the past five years. However, our reports show that more could be

done.

ENVIRONMENTAL JUSTICE AT EPA

EPA defines environmental justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect

to the development, implementation, and enforcement of environmental laws, regulations, and policies. Fair treatment means that no group of people should bear a

disproportionate share of the negative environmental consequences resulting from

industrial, governmental, and commercial operations or policies. Meaningful involvement means that: 1) people have an opportunity to participate in decisions about

activities that may affect their environment and/or health; 2) the public’s contribution can influence the regulatory agency’s decision; 3) their concerns will be considered in the decision making process; and 4) the decision makers seek out and facilitate the involvement of those potentially affected.

In February 1994, the President signed Executive Order 12898 (Order) focusing

Federal attention on the environmental and human health conditions of minority

and low-income populations with the goal of achieving environmental protection for

all communities. This Order directed Federal agencies to develop environmental justice strategies to help them address disproportionately high and adverse human

health or environmental effects of their programs on minority and low-income populations. The Order is also intended to promote nondiscrimination in Federal programs that affect human health and the environment. It aims to provide minority

and low-income communities’ access to public information and public participation

in matters relating to human health and the environment. The Order established

an Interagency Working Group on environmental justice chaired by the EPA Administrator and comprised of the heads of 11 departments or agencies and several

White House offices.
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At EPA, the Office of Environmental Justice (OEJ) within the Office of Enforcement and Compliance Assurance (OECA) coordinates EPA’s efforts to integrate environmental justice into all policies, programs, and activities. Within each regional office there is at least one environmental justice coordinator who serves as the focal

point within their organizations and as the liaison to OEJ. Among the coordinator’s

duties are to provide policy advice and to develop and implement programs within

their regions. There is no specific environmental justice statute to fund environmental justice activities at EPA. Consequently, OEJ performs activities using a general Environmental Program Management appropriation budget line item.

OIG ENVIRONMENTAL JUSTICE WORK

For the past 5 years, the OIG has been examining EPA’s environmental justice

activities as part of our broader strategic plan to review how EPA fulfills its responsibilities to address environmental threats and their impact on ecosystems, communities, and susceptible populations. We have issued two reports focusing on EPA’s

implementation of Executive Order 12898 requirements.

EVALUATION OF EPA’S IMPLEMENTATION OF EXECUTIVE ORDER

In a 2004 review, we reported on how EPA was integrating environmental justice

into its operations. Specifically, we sought to answer the following questions: 1) how

had EPA implemented the Order and integrated its concepts into its regional and

program offices; and 2) how were environmental justice areas defined at the regional

levels and what was the impact.

We concluded that EPA had not fully implemented the Order and was not consistently integrating environmental justice into its day-to-day operations at that time.

EPA had not identified minority and low-income communities, or defined the term

‘‘disproportionately impacted.’ Moreover, in 2001, EPA restated its commitment to

environmental justice in a manner that did not emphasize minority and low-income

populations which we believed was the intent of the Order. In the absence of environmental justice definitions, criteria, or standards from EPA, many regional and

program offices individually took steps to implement environmental justice policies.

The result was inconsistency in determining environmental justice communities

across EPA regions and programs. For example, between the regions there was a

wide array of approaches for identifying environmental justice communities. Thus,

the implementation of environmental justice actions was dependent, in part, on

where you lived.

We made 12 recommendations to EPA to address the issues we raised, which are

listed in Attachment A. Four key recommendations were: 1) reaffirm the Executive

Order as a priority; 2) establish specific timeframes for developing definitions, goals,

and measurements; 3) develop a comprehensive strategic plan; and 4) determine if

adequate resources are being applied to implement environmental justice. EPA disagreed with 11 of the 12 recommendations. EPA did agree to perform a comprehensive study of program and regional offices’ funding and staffing for environmental

justice to ensure that adequate resources are available to fully implement its environmental justice plans. In May 2004, EPA issued its report entitled ‘‘Environmental Justice Program Comprehensive Management Study’’ conducted by Tetra

Tech EM Inc.

EVALUATION OF EPA ENVIRONMENTAL JUSTICE REVIEWS

In 2006, we completed our evaluation of whether EPA program and regional offices have performed environmental justice reviews of their programs, policies, and

activities as required by the Order. We specifically sought to determine if: 1) there

had been clear direction from EPA senior management to perform environmental

justice reviews of EPA programs, policies, and activities; 2) EPA had performed environmental justice reviews; and 3) EPA had adequate guidance to conduct these reviews or if there was a need for additional directions or protocols.

To determine the direction, frequency, and guidance for environmental justice reviews, we met with OECA, OEJ, and Office of Air and Radiation representatives.

We then conducted an EPA-wide survey of each of the Deputy Assistant Administrators in EPA’s 13 program offices and each of the 10 Deputy Regional Administrators

on their experience conducting environmental justice reviews of their programs,

policies, and activities. We also asked them to describe their satisfaction with available guidance and instructions for conducting these reviews, and whether they needed additional directions or protocols. We did not design our survey to draw inferences or project results. Rather we sought to obtain descriptive information on implementing environmental justice at EPA.
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Our survey results showed that EPA program and regional offices have not routinely performed environmental justice reviews. Reasons for not performing these

reviews included the absence of a specific directive from EPA management to conduct such reviews; a belief by some program offices that they are not subject to the

Order since their programs do not lend themselves to reviewing impacts on minority

and low-income populations; and confusion regarding how to perform the reviews.

In addition, we found that program and regional offices lacked clear guidance to follow when conducting environmental justice reviews. Survey respondents stated that

protocols, a framework, or additional directions would be useful for conducting environmental justice reviews. We concluded that EPA cannot determine whether its

programs have a disproportionately high and adverse human health or environmental effect on minority and low-income populations without performing these

types of reviews.

We made four recommendations to EPA to address these issues. We recommended

that EPA: 1) require program and regional offices to determine where environmental justice reviews are needed and establish a plan to complete them; 2) ensure

that environmental justice reviews determine whether EPA programs, policies, and

activities may have a disproportionately high and adverse health or environmental

impact on minority and low-income populations; 3) develop specific environmental

justice review guidance that includes protocols, a framework, or directions; and 4)

designate a responsible office to compile the results of environmental justice reviews

and make recommendations to EPA senior leadership. EPA agreed with our recommendations and established milestones for completing those actions. For example, in response to our third recommendation EPA convened an Agency-wide Environmental Justice workgroup in April 2007 to begin developing protocols to provide

guidance for conducting reviews. Implementation of the protocols developed is scheduled for March 2008.

NOTEWORTHY EPA ACHIEVEMENTS

In the interest of objectivity I also should say that since the issuance of our reports, EPA has taken some steps to address environmental justice issues. In 2005,

Administrator Stephen Johnson reaffirmed EPA’s commitment to environmental

justice by directing staff to establish measurable commitments that address environmental priorities such as: reducing asthma attacks, air toxics, and blood lead levels;

ensuring that companies meet environmental laws; ensuring that fish and shellfish

are safe to eat; and ensuring that water is safe to drink. EPA is also including language in the fiscal year 2008 National Program Guidance that each headquarters

program office should use its environmental justice action plan and EPA’s strategic

plan to identify activities, initiatives, or strategies that address the integration of

environmental justice. Finally, EPA is modifying its emergency management procedures in the wake of Hurricane Katrina to incorporate an environmental justice

function and staffing support in the EPA’s Incident Command Structure so that environmental justice issues are addressed in a timely manner.

These are all positive steps but EPA recognizes that more work needs to be done,

particularly in its efforts to making environmental justice part of its mission by integrating environmental justice into its decision making, planning, and budgeting

processes. EPA needs to be able to determine if their programs, policies, and actions

have a disproportionate health or environmental impact on minority or low-income

populations. EPA also still needs broad guidance on environmental justice program

and policy reviews, which EPA acknowledges is not in place.

One of EPA’s goals is to provide an environment where all people enjoy the same

degree of protection from environmental and health hazards and equal access to the

decision-making process to maintain a healthy environment in which to live and

work. Our work has shown that EPA still needs to do more to integrate environmental justice into its programs and activities so that it may achieve this goal.

Thank you for the opportunity to testify before you today. I would be pleased to

answer any questions you may have.

ATTACHMENT A

Recommendations from 2004 OIG Report ‘‘EPA Needs to Consistently Implement

the Intent of the Executive Order on Environmental Justice’’

1) Issue a memorandum that reaffirms that Executive Order 12898 is the Agency’s priority and that minority and low-income populations that are disproportionately impacted will receive the intended actions of this Executive Order.

2) Clearly define the mission of the Office of Environmental Justice and provide

Agency staff with an understanding of the roles and responsibilities of the office.
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3) Establish specific time frames for the development of definitions, goals and

measurements that will ensure that the 1994 Executive Order is complied with in

the most expeditious manner.

4) Develop and articulate a clear vision on the Agency’s approach to environmental justice. The vision should focus on environmental justice integration and

provide objectives that are clear, precise, and focused on environmental results.

5) Develop a comprehensive strategic plan for environmental justice. The plan

should include a comprehensive mission statement that discusses, among other

things, the Agency’s major functions and operations, a set of outcome-related goals

and objectives, and a description of how the Agency intends to achieve and monitor

the goals and objectives.

6) Provide the regions and program offices a standard and consistent definition

for a minority and low-income community, with instructions on how the Agency will

implement and operationalize environmental justice into the Agency’s daily activities. This could be done through issuing guidance or a policy statement from the

Administrator.

7) Ensure that the comprehensive training program currently under development

includes standard and consistent definitions of the key environmental justice concepts (i.e., low-income, minority, disproportionately impacted) and instructions for

implementation.

8) Perform a comprehensive study of program and regional offices’ funding and

staffing for environmental justice to ensure that adequate resources are available

to fully implement the Agency’s environmental justice plan.

9) Develop a systematic approach to gathering accurate and complete information

relating to environmental justice that is usable for assessing whether progress is

being made by the program and regional offices.

10) Develop a standard strategy that limits variations relating to Geographical Information System (GIS) applications, including use of census information, determination of minority status, income threshold, and all other criteria necessary to

provide regions with information for environmental justice decisions.

11) Require that the selected strategy for determining an environmental justice

community is consistent for all EPA program and regional offices.

12) Develop a clear and comprehensive policy on actions that will benefit and protect identified minority and low-income communities and strive to include in States’

Performance Partnership Agreements and Performance Partnership Grants.

Mr. WYNN. Thank you very much for your testimony.

Ms. O’Neill.

STATEMENT OF MOLLY A. O’NEILL ASSISTANT ADMINISTRATOR, OFFICE OF ENVIRONMENTAL INFORMATION, U.S.

ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, DC

Ms. O’NEILL. Good morning, Mr. Chairman and distinguished

members of the subcommittee. Thank you for the opportunity to

testify today about the progress EPA is making in providing important information to communities across the Nation regarding our

work to publish the annual toxic release inventory or TRI. This testimony reflects my dual roles as the Chief Information Officer at

the U.S. EPA and as the Assistant Administrator of Environmental

Information where the toxic release inventory is one of the programs that I oversee.

Let me begin by saying I believe environmental information is a

strategic asset as we work to protect human health and the environment. I believe this is important because environmental information underlies all decisions made by EPA and our partners to

achieve our goals. As you know, EPA’s TRI Program provides information on releases and waste management activities for nearly 650

chemicals reported from industry. Environmental information has

many uses, and one of the most effective is to encourage facilities

to reduce emissions or releases.
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The December 2006 final TRI rule expanding eligibility for use

of short-form reporting provided important incentives for pollution

prevention. The rule would allow companies to use a shorter, simpler reporting form known as Form A to provide required information so long as they eliminate or minimize releases to the environment. No facilities were excused from reporting under the TRI rule,

and no chemicals were removed from the required reporting list.

The only change in requirements is that facilities are permitted to

use the short form if they maintain releases and total waste is

below limits established in the rule.

The rule is an important part of EPA’s strategy to minimize releases of toxic chemicals across the United States. It rewards facilities that completely eliminate releases of the worst environmental

substances persistent by accumulative and toxic chemicals to PBTs.

By allowing them to use a shorter reporting form, provided they do

not exceed 500 pounds of recycling energy recovery and treatment

for that chemical, EPA believes these stringent requirements for

short-form reporting are appropriate for PBT chemicals because of

the greater potential for environmental harm.

For other toxics the rule allows for short-form reporting for those

facilities that reduce or maintain releases below 2,000 pounds, provided their total waste management does not exceed 5,000 pounds.

EPA believes that providing incentives to encourage pollution prevention and better waste management practices is good for the environment, good for facilities, and good for people who live around

them.

These limits encourage pollution prevention and should be given

an opportunity to work. EPA does not support H.R. 1055, because

it would eliminate the valuable incentives provided in the December 2006, rule before we have even had a chance to determine their

effectiveness and could also have adverse resource implications to

the TRI Program.

We would not expect the effects of the December 2006, new incentives to be reflected in the reports for calendar year 2006, that

we are not processing. Beginning with reports for 2007, which

would be due July 1, 2008, EPA will begin to evaluate the effectiveness of these incentives in reducing releases and promoting pollution prevention.

EPA does continue to demonstrate our commitment to public access to environmental information. This year we expanded TRI reporting of dioxin and dioxin-like chemicals, compounds, increasing

public access to how facilities use, manage, and release the most

toxic chemical group.

In addition, EPA converted the entire TRI reporting system over

to the modern industry standard classification practice to enhance

information sharing and comparability across sectors. We continue

to take steps to improve TRI to enhance its utility for local communities. We continue to get it out earlier and earlier to the public.

In addition to TRI, my role as EPA’s Chief Information Officer,

I also want you to know that we are working on new and innovative tools and applications to deliver a new suite and a more comprehensive suite of environmental data to local communities, including the use of geo-special tools, which will provide easy access

to detailed local information. Ultimately these efforts and other
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projects underway will provide a useful set of environmental information about local environments.

On behalf of Administrator Johnson, thank you for inviting me

to come here to speak today and to tell you our progress that EPA

is making on providing important information to communities

across the Nation, including TRI.

And in particular I want to thank you for inviting me personally

to describe my views and our views at EPA on H.R. 1055, the Toxic

Right-to-Know Protection Act.

I would be happy to address any questions.

[The prepared statement of Ms. O’Neill follows:]
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Mr. WYNN. Thank you very much, Ms. O’Neill.

Mr. Sullivan.

STATEMENT OF THOMAS M. SULLIVAN, CHIEF COUNSEL, ADVOCACY, OFFICE OF ADVOCACY, U.S. SMALL BUSINESS ADMINISTRATION, WASHINGTON, DC

Mr. SULLIVAN. Chairman Wynn, Congressman Shimkus, and

members of the subcommittee, thank you for giving me the opportunity to appear this morning.

I am the Chief Counsel for Advocacy at the U.S. Small Business

Administration. My office is an independent one within the SBA,

and therefore, the comments expressed in my statement do not necessarily reflect the position of the administration or the SBA. Due

to my office’s independence, my statement was not submitted to

OMB for approval.

Small businesses have been asking for TRI paperwork burden relief since 1990. This hearing is actually the fifth hearing held by

House committees on TRI reform in five consecutive Congresses.

Five years after TRI was created, my office petitioned EPA to develop streamlined reporting for small volume chemical users.

In 1994, EPA responded to the petition by adopting Form A, as

Ms. O’Neill mentioned, the short form for TRI reporting. Adapted

as a less burdensome alternative to the long form, Form R, the

original Form A allowed companies to report their releases as a

range instead of a specific number.

Unfortunately, the Form A developed in 1994 was never utilized

to its potential, owing to restrictive eligibility requirements subsequently imposed on the short form. Small business have consistently voiced their concerns to my office that the TRI Program imposes substantial paperwork burdens with little corresponding environmental benefit, especially for thousands of businesses that

have zero discharges or emissions to the environment. These businesses must devote scarce time and resources to completing the

lengthy, complex form R reports each year, despite the fact that

they have zero discharges.

Why is TRI paperwork burden reduction important to small business? Well, the reason for my office’s involvement is simple. Small

businesses are disproportionately impacted by Federal rules and

regulations. The overall regulatory burden in the United States exceeds $1.1 trillion. I will repeat that. The burden in the United

States exceeds $1.1 trillion. For firms employing fewer than 20 employees, the most recent estimate of their annual regulatory burden

is $7,647 per employee.

Looking specifically at compliance with Federal environmental

rules, the difference between small and large firms is even more

dramatic. Small firms have to spend four and a half times more per

employee for environmental compliance than larger businesses do.

Environmental requirements, including TRI paperwork, can comprise up to 72 percent of small manufacturers’ total regulatory

costs.

EPA’s reform to the TRI reporting rules allows more small businesses to use the short form instead of the longer Form R. This will

save money, and it provides an incentive for companies to recycle

chemicals instead of disposing them.
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The TRI Burden Reduction Rule will strengthen overall environmental compliance. I recently talked with a TRI expert who runs

an environmental consulting firm in southeast Michigan. He works

with small businesses on environmental management issues, and

he was proud of the help he provided to a paper mill. He had

worked with a paper mill to encourage them to recycle small

amounts of mercury generated when switches and other process

control circuits undergo maintenance in the mill’s powerhouse.

He explained to me that EPA’s TRI reform will allow a number

of industrial operations such as tool and die shops and metal

stamping plants to file a Form A for the first time. It will also provide an incentive for other companies to recycle their TRI chemicals rather than disposing of them.

The Office of Advocacy supports EPA’s TRI Burden Reduction

Rule. Although the rule reform does not go as far as some small

businesses would prefer, my office supports EPA’s December 2006

rule. The rule demonstrates that EPA is listening to the concerns

of small business, and EPA’s reform should be a model for other

agencies to reform their existing rules and regulations to reduce

costs while preserving or strengthening regulatory objectives. H.R.

1055 prevents EPA from moving forward with the reforms, so my

office is opposed to the legislation.

Thank you for allowing me to present these views, and I would

be happy to answer questions.

[The prepared statement of Mr. Sullivan follows:]
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Mr. WYNN. Thank you, Mr. Sullivan.

Mr. Stephenson.

STATEMENT OF JOHN B. STEPHENSON, DIRECTOR, NATURAL

RESOURCES AND ENVIRONMENT, GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC

Mr. STEPHENSON. Thank you, Mr. Chairman, Mr. Shimkus,

members of the committee.

I am here today to discuss two studies the GAO has undertaken

that relate these two issues. Our first study examined the extent

to which EPA was meeting its environmental justice commitment

that environmental laws will not disproportionately impact minority and low-income communities.

As Ms. Solis indicated, in July 2005 we issued a report to her

that concluded that EPA in general devoted very little attention to

environmental justice when developing new air rules. We made

several recommendations for improvement that EPA has only partially responded to since we issued our report.

For example, to its credit EPA now includes the Office of Environmental Justice as an ex officio member of its Regulatory Steering Committee, however, the Office is still not sufficiently involved

in working groups for individuals rules. We believe that more specific guidance, training, and manageable benchmarks are needed to

hold EPA officials accountable for achieving EJ goals.

Our second study on the new toxic release inventory rule is almost complete and will result in a report later this month. TRI’s

an extremely important system as has been mentioned because it

is EPA’s mechanism for meeting the requirements of the Emergency Preparedness and Communities Right-to-Know Act for facilities to report and make public their use of toxic chemicals. There

are currently over 23,000 facilities across the country that report

valuable information annually on over 600 dangerous chemicals. In

developing the TRI rule we found that EPA did not follow its internal rule-making guidelines.

For example, the rule pretends to reduce industry’s reporting

burden by quadrupling the threshold from 500 to 2,000 pounds for

facilities to use the shorter, less-informative Form A for reporting

toxic chemical releases. However, EPA did not fully analyze the impact of the loss of chemical information on TRI users like States,

communities, and first responders.

EPA’s internal stakeholders were in the process of analyzing several other burden reduction options when OMB late in the process

suggested increasing the reporting threshold, an option that EPA

had earlier rejected. Pressure to quickly implement the rule left

EPA with insufficient time for a complete economic analysis.

For example, electronic reporting, which has been mentioned

today and which has shown to provide far more burden reduction

in this rule, was missing from the analysis. Notwithstanding the

lack of analysis, EPA published the proposed rule in the Federal

Register and received over 120,000 comments, including a dozen attorney generals from California, Connecticut, Illinois, Iowa, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico,

New York, Vermont, and Wisconsin opposing the rule because of its

impact on TRI information and environmental justice implications.
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Mr. Chairman, we are very concerned that to achieve burden reduction EPA is tinkering with what has historically been a highlysuccessful program to control the use of toxic chemicals. EPA contends that the rule will result in only a 1 percent loss of information, however, this is an aggregate estimate based on total pounds

of chemicals nationwide and ignores the more important implications of the rule on individual communities.

In fact, we estimate that the rule has the potential to reduce information on toxic chemical releases from over 6,600 facilities.

Moreover, a disproportionately larger number of these facilities are

near minority and low-income communities.

Time permitting, Mr. Chairman, I would like to, I have a couple

of graphics. I think each of you, if you can’t see the monitors, has

a package, and it should be in front of them. To illustrate the impact of the TRI rule on individual communities.

This uses Google Earth, which is a free software available to everybody and overlays EPA information on it. And what you are seeing in this first slide is the, indeed, the 23,000 TRI reporting facilities, and I know you can’t count 23,000. Could you switch the slide?

There you go. You can see that there are 23,000 facilities, and you

can see the focus of where those are.

Now, this second slide shows you the 6,600 plus facilities that

are subject to information reduction under this new rule. There is

still quite a few facilities there. Now, you can use this. We are not

using this interactively. These are stagnant, but you can actually

use this to zoom in on any individual community, and we selected

Los Angeles, but you could do this with any other area.

So the next slide zooms in on which 6,600 of these facilities are

located in and around the Los Angeles area, and you can see there

is quite a few.

And then finally we wanted to connect the dots between TRI and

environmental justice by showing you the implications of these facilities in the Los Angeles area on low-income and minority communities. The cylinders represent low income households within a

1-mile radius of the facility. The higher the cylinder, the poorer the

community, and the colors represent minority. Red colors represent

80 percent minority or greater. And, frankly, I think the graphic

speaks for itself.

In conclusion, Mr. Chairman, let me say that failing to demonstrate any burden reduction, EPA now asserts that the TRI rule

will provide an incentive for facilities to reduce their toxic chemical

releases. It is difficult for us to understand how raising the threshold for reporting would achieve that objective.

Mr. Chairman, that concludes a summary of my statement. I will

be happy to answer questions.

[The prepared statement of Mr. Stephenson follows:]
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Mr. WYNN. Thank you very much for your testimony. I would

like to thank all of the witnesses.

At this time the Chair would like to raise a few questions.

Mr. Nakayama, about how many rulemakings does EPA engage

in?

Mr. NAKAYAMA. I don’t have the exact number. I am sure it is

hundreds.

Mr. WYNN. What percentage would you say the Office of Environmental Justice substantially participated in?

Mr. NAKAYAMA. I would say a very small fraction.

Mr. WYNN. OK. Thank you. Is it true that some programs of the

EPA have not incorporated environmental justice in their core

functions?

Mr. NAKAYAMA. I know we are working on getting all parts of

EPA to integrate EJ into their functions, and this fiscal year 2008,

strategic plan is moving forward.

Mr. WYNN. So that is somewhat of a left-handed way of saying

that, yes, in the last 13 years there are some that have not.

Mr. NAKAYAMA. I don’t personally know one way or the other.

Mr. WYNN. OK. That is fine. In the 13 years since the Executive

order was issued, has EPA ever done a comprehensive review to

determine whether this program or policies have a disproportionately high impact on minority communities, minority or low-income

communities?

Mr. NAKAYAMA. We are engaged in that process now to conduct

these EJ reviews as a result of both the IG report——

Mr. WYNN. I guess that is also another way of saying, no, you

haven’t in the past.

Ms. O’Neill, now, you said your basic rationale is if they minimize the releases, you want to allow them to use the short form.

Is that basically your position?

Ms. O’NEILL. There is incentive to use the short form if they minimize or eliminate releases.

Mr. WYNN. OK. Now, it seems to me that the environmental

community States and everyone else really would like to minimize

releases as well, is it your position that you disagree with the 23

States and the 30 public health organizations and the 40 labor organizations and the 200 environmental organizations that have basically said they want this data notwithstanding the incentivizing

that has taken place?

Ms. O’NEILL. I think that the States would agree that the first

priority would be to eliminate or reduce waste as a priority.

Mr. WYNN. But the States said that they didn’t want this rule.

Twenty-three States at least said they didn’t want it.

Ms. O’NEILL. Some of the comments to the rule based on what

I have seen are not entirely or the understanding of what we are

doing. The reality of it is that each community is still getting information on the chemicals that are there.

Mr. WYNN. Well, isn’t it true that there would be 22,000, more

than 22,000 less long-form reports with detailed information? Isn’t

that true?

Ms. O’NEILL. That is not true for this particular December 26

rule. As a result of that. Actually, there were 11,000 that were al-
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ready eligible under the previous rule. So it is an additional 11,000.

In total you are correct.

Mr. WYNN. In total it is 22,000?

Ms. O’NEILL. Right. I just wanted to clarify that.

Mr. WYNN. OK. Now, you are saying, well, they are not going to

release these toxic materials, and so you think that is a justification for not providing the data. But isn’t it true that even if they

don’t release the toxic material, that the material will still be in

the facility?

Ms. O’NEILL. It depends on whether it is PBT or non-PBT, but

some will. Absolutely. Up to 500 pounds of PBTs.

Mr. WYNN. So it would impact the employees in the facility even

if the material were not released. Isn’t that true?

Ms. O’NEILL. The facility employees should know where the information is and where the chemicals are.

Mr. WYNN. Well, they wouldn’t be able to get the information because reports are not submitted. The detailed reports are not submitted. Now, what about first responders and others outside of the

facility? Even if there is no release, again, the toxic material is still

inside. Isn’t that true?

Ms. O’NEILL. That is exactly right, and that is why EPCRA sets

up different sections of the rule so that it can address emergency

responses different than TRI.

Mr. WYNN. But the responders still need to be aware of that information.

Let me turn to Mr. Sullivan. You are talking about paperwork,

but isn’t it true that all these are electronically-filed reports?

Mr. SULLIVAN. I don’t know that the percentage that are filed

electronically or the number that are filed in paper. I would

ask——

Mr. WYNN. But they could be filed electronically.

Mr. SULLIVAN. The actual program that receives the reports

could respond.

Mr. WYNN. Now, you cited at one point $1 trillion is the burden,

but isn’t it true that the burden on an individual small business

would only be about $900 a year?

Mr. SULLIVAN. You will hear from the next testimony that one

example of a saving is 2 days worth of paperwork for this rule, and

there are other estimates.

Mr. WYNN. Well, but it comes to an average of $900.

Mr. SULLIVAN. EPA’s estimate is $900. That is correct.

Mr. WYNN. OK. Well, we will work with that. One final question.

Now, you talked about small businesses and the implications of

these are very small, but isn’t it true that the definition of small

business includes businesses up to 500 employees?

Mr. SULLIVAN. SBA’s definition of small employers includes businesses up to 500. That is correct.

Mr. WYNN. So these aren’t exactly Ma and Pa operations that are

filing these reports.

Mr. SULLIVAN. Mr. Chairman, Mom and Pop operations from all

over the country have appealed to my office for over 10 years to get

this type of reform.

Mr. WYNN. But employees, businesses under 10 employees aren’t

included.
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Mr. SULLIVAN. The 10 employee threshold in the law was done

on a risk analysis, and if you extend that same risk analysis, it

leads to the reforms finalized in December 2006.

Mr. WYNN. But Ma and Pa really aren’t included.

My time is up. I recognize my distinguished ranking member for

questions at this time.

Mr. SHIMKUS. Thank you, Mr. Chairman. The frustrating thing

with me in this is we keep using the word ‘‘release’’ and we don’t

define it, and I know the chairman tried to identify. It would help

us, it would help the minority if in the movement of this bill that

we just properly label.

So we could say toxic use chemical reporting, use inside a facility, we could say chemical reporting inside a facility, we could say

possible toxic release inventory, what is possible to be released. We

could say, here is a good acronym, TUMRI, toxic use manage and

release inventory. So it identifies as not—every person on the panel

kept using the word, release, and what it tells the public is that

we are releasing all this stuff. All this stuff is in the atmosphere.

All this stuff for environmental justice is killing the people in the

minority communities when that is not true. This is a redefinition

of the word, release, in 1986, by Senator Lautenberg. It is not Webster’s definition of what a release is.

I am a simple infantrymen, southern Illinoian, rural person, and

I think just to help address this debate we need to just properly

define it, and that is my appeal to the people who really want to

address this, to say if we want industry to report every chemical

process in a facility and maybe they just recycle it, where there is,

it is just in a cycle of manufacturing, then let us let them do that.

Let us don’t scare the world to say that all these things that are

on this list are toxic releases, because they are not.

And so every testimony that is using the word, release, based

upon the Lautenberg language is really deceptive in this testimony

because 99.9 percent of all Americans would not agree with that

definition, nor would Webster’s definition.

So I would hope that it is a simple change. It would be in compliance with moving forward, but it is very, very frustrating.

Mr. Sullivan, how does this EPA reform, not hurt local communities?

Mr. SULLIVAN. Congressman Shimkus, when we appealed to EPA

to reform the rule, we wanted to make sure that the same type of

risk analysis that led to EPA Administrator Carol Browner’s adoption of the short form transcended into this new paperwork burden

reduction reform announced in December 2006. And when EPA did

the analysis of moving information from Form R to Form A, and

this was mentioned by GAO, they maintained 99 percent of the information. That is the same percentage requirement that Carol

Browner used to adopt the short form.

So when you look at specific communities and you say, well, is

it the same environmental protections from Carol Browner conveyed to this new rule, the answer is yes.

Mr. SHIMKUS. And we all love our first responders, and we want

to make sure that they are protected and knowledgeable. How do

you respond to the criticisms that this TRI reform hurts emergency

responders?
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Mr. SULLIVAN. Well, first of all, I commend the committee for

having the hearing to clear up a terrible misconception, and that

terrible misconception is that the Toxic Release Inventory provide

first responder information when the alarm goes off, they are responding to a tragedy, and they are faced with a life-threatening

situation of either breaking down a door or knowing that there is

an explosive chemical behind that door, taking the appropriate procedures. That is not what TRI data is for.

In fact, to supplement Congressman Shimkus’s earlier statement,

the TRI covers about 24,000 facilities. MSDS sheets, which are

available for employees and local firefighters and first responders,

along with chemical inventory data, covers over 550,000 facilities,

and it is timely information, not information that is over a year old

like TRI data is. So I think that this committee deserves credit for

really exposing terrible misinformation that the TRI data is the

most important for first responders. That is not what the facts bear

out, Mr. Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman, and I have 6 seconds

left, and I will yield back.

Mr. WYNN. Thank you. The Chair would recognize Ms. Solis for

questions.

Ms. SOLIS. Thank you, Mr. Chairman.

My question is for Mr. Stephenson, and I wanted to ask just

quite frankly, in your opinion, do you believe that the Executive

order on environmental justice has been implemented adequately

by EPA?

Mr. STEPHENSON. In a nutshell, no. That is what we reported in

2005, and we think they are moving in the right direction. We

think including them as an ex officio member of the steering committee is good, but we saw no evidence of its inclusion in individual

rule marking.

Ms. SOLIS. And you mentioned something about the current

working groups that are coming about and that there is still a lack

of representation of EJ representatives or stakeholders in those

working groups. Is that correct?

Mr. STEPHENSON. That is right. The only one that was held up

oddly enough was looking at EJ implications of this very rule, the

TRI rule.

Ms. SOLIS. Which is amazing to me. I don’t understand that.

My question is the facilities that you showed up here in Los Angeles, what would happen in a community like East Los Angeles,

for example, which is pointed out very clearly in your documentation as the hot spots here, if they didn’t have to report? This is like

the 1 percent that doesn’t, that would not be, would not have the

advantage of giving us information, and this is where a higher

tendency of minority, low-income, and toxic levels are much higher.

What would that mean to communities of color?

Mr. STEPHENSON. Well, there is a misconception here. We never

said that TRI was the first source of information for emergency responders. Nevertheless, they use it in overall planning. We have

been told that by the States.

This is a public right-to-know program, TRI, and we use that

term ‘‘release’’ because that is the name of the program, Toxic Release Inventory. You are absolutely right that it is any facility that
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manages, handles, disposes of appropriately, nevertheless the program is called the Toxic Release Inventory.

So the purpose of this program, the reason it has been highly

successful is because the public has information about these chemicals. Individuals can go into the TRI database put in their ZIP

Code and find out information about what is happening around

them. We don’t see burden reduction from raising the threshold

from 500, 2,000 pounds.

Ms. SOLIS. And you mentioned something, if I could just interrupt, that with the reporting requirements being now much more

easily accessible through computer, that that definitely would possibly lower costs for businesses.

Mr. STEPHENSON. Absolutely. Right now, and we think EPA is

doing a good job integrating this information in more usable forms

to the public, and we are disappointed that it takes 12 months to

get the data out, but that is changing.

Ms. SOLIS. Yes.

Mr. STEPHENSON. Right now over 95 percent of the filers use

electronic filing, and we expect that will go to 99 percent.

Ms. SOLIS. Yes.

Mr. STEPHENSON. So that is where the true burden reduction and

usefulness of this program comes, not from a rule to change the

threshold for reporting. It is not paperwork anymore.

Ms. SOLIS. Well, I think that this information is very timely because in the area that I do represent, which is kind of somewhat

outlined in your graph here, the Port of Long Beach and Los Angeles as we know are major targets for potential terrorism, and if you

can see in the map there, and I know the area. Geographically

there is a lot of refineries, oil refineries, a lot of chemical plants,

and a major thoroughfare for our railroad system. God forbid if

something were to happen, and we didn’t know what was available

there. And this is where that information would be lacking if we

continue to not see enforcement of the original legislation.

So I am very concerned about that, and I just want to thank you

for giving us your information.

And I want to go next, if I can, please, to Granta Nakayama, and

wanted to ask him with the administration’s request to cut back on

environmental justice funding, which was about a 30 percent cut,

you mentioned earlier in your statement that you were giving out

grants now of $1 million to community groups. Is it not true that

during the discussion debate on the budget that if this, if that went

through, according to the Bush administration, that these grant

programs wouldn’t even be there, and it was partly because Congress put the money back in?

Mr. NAKAYAMA. First of all, I want to be very clear that the

President’s budget request for the Office of Environmental Justice

has been fairly flat over the last 5 or 6 years. There hasn’t been

much change. Congress through its generosity has provided an add

on so that we could pursue these environmental justice grants. Appreciate the support of that program. We made great use of that

money. I think it is having a big impact.

Ms. SOLIS. But it would have been cut. That is my question.

Mr. NAKAYAMA. Well, last year we didn’t get the add on, because

he had a continuing resolution. We did not get that add on, and
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yet we took out, the administration put $895,000, almost $1 million, out of other EPA activities, not out of my office, not out of the

Office of Enforcement and Compliance Assurance, put that money

in there so we could continue this program.

Ms. SOLIS. My next question is, did the Office of Environmental

Justice analyze the impact of the closure on the Region 10 Environmental Justice Office for budget reasons prior to its closure?

Mr. NAKAYAMA. The Region 10 Environmental Justice Office

wasn’t closed. What they did is they reorganized and pulled the environmental justice function out of the administration and resource

management function and put it in a line operation. In other

words, the real, they put it in the actual line organization that regulates the environmental activities in region 10. And what that did

is I think it produced a much more active and much more effective

environmental justice function in region 10.

Ms. SOLIS. One of the other questions I have is for our witness,

Mr. Sullivan. You mentioned that the cost to small business given

reporting of these chemicals is about a 72 percent burden or something like that to that effect. How do you quantify that with TRI?

How do you quantify that? Please explain that to me.

Mr. SULLIVAN. Of course. Every 2 or 3 years my office hires an

outside contractor to research regulatory burden with the attempt

of trying to figure out whether there is a disproportionality of small

versus large, because when we work with OSHA and EPA and IRS

and Department of Transportation, the idea of our involvement and

encouraging agency sensitivity to small firms is to level that playing field.

Ms. SOLIS. But there were a lot of other regulatory mechanisms

in place where the Government actually provides assistance for

cleanup, the Underground Storage Tank Program as an example.

That isn’t a direct burden necessarily placed on small businesses.

Mr. WYNN. The gentle lady’s time has expired.

Ms. SOLIS. We can submit. Thank you.

Mr. WYNN. We are going to try to get one more line of questioning before recessing to vote.

Mr. Murphy of Pennsylvania.

Mr. MURPHY. Thank you, Mr. Chairman.

A quick question for the EPA here. Would the OSHA worker

safety requirements apply in any plant that has to report and more

specifically, does the TRI impact the OSHA safety requirements for

workers?

Ms. O’NEILL. Assuming that is for me.

Mr. MURPHY. Yes.

Ms. O’NEILL. No, it does not impact.

Mr. MURPHY. Not at all?

Ms. O’NEILL. No.

Mr. MURPHY. OSHA standards are separate here?

Ms. O’NEILL. Yes, they are.

Mr. MURPHY. OK. That is an important thing. I may have some

other follow up I want to use on that later on.

I am going to yield to the ranking member, Mr. Shimkus, the remainder of my time.
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Mr. SHIMKUS. I thank you. Chairman Barton, I mean, ranking

member, Joe, do you want to ask a question because we are going

to be——

Mr. BARTON. No.

Mr. SHIMKUS. All right. Let me go to Ms. O’Neill. Does TRI set

pollution limits for permits?

Ms. O’NEILL. No.

Mr. SHIMKUS. Does TRI set environmental health standards?

Ms. O’NEILL. No, it does not.

Mr. SHIMKUS. Is it anything more than a reporting program?

Ms. O’NEILL. It is a reporting program. Yes.

Mr. SHIMKUS. Is anyone newly exempted from TRI reporting that

previously had to file a report?

Ms. O’NEILL. No, they are not.

Mr. SHIMKUS. Were any chemicals that previously had to be reported removed from the list of reportable chemicals?

Ms. O’NEILL. No, they were not.

Mr. SHIMKUS. How current is TRI data?

Ms. O’NEILL. By the time it is published, a year and a half old.

Mr. SHIMKUS. Eighteen months.

Ms. O’NEILL. Eighteen months. We are working on that.

Mr. SHIMKUS. All right. Is EPA prevented from getting additional

data from reporting entities under TRI regulations?

Ms. O’NEILL. No.

Mr. SHIMKUS. OK. And for my last opportunity, I am still going

to be lobbying for a change in the title. I got corrected. It wasn’t

the 1986, Act. The 1986, Act actually defined release as release. it

was the 1990, changes that added all this other stuff, so if you all

want to submit to me additional terminology that would adequately

define what this program is, I think the committee would be happy

to receive it. I would, and we would, maybe if we move forward,

properly define what we actually are trying to do here.

And with that, Mr. Chairman, I yield back my time.

Mr. WYNN. Thank you. The subcommittee’s going to stand in recess until the conclusion of this series of votes. We are going to reconvene 5 minutes after the conclusion of the last vote. Thank you.

[Recess.]

Mr. WYNN. The subcommittee will reconvene. At this point we

are going to proceed directly with questions from Mr. Barrow of

Georgia.

Mr. BARROW. Thank you, Mr. Chairman.

I hear, and I can relate to Mr. Shimkus’s point about how the

toxic release inventory is sort of misleading nomenclature. I guess

instead of TRI it might be best for us to rename it TMI, toxic management index, but TMI also means too much information. Some

folks don’t want us to have enough information.

So I want to focus in on that concern of mine. I may agree with

him that the use of the word, release, ain’t Webster’s definition of

the word, release, but I will see him Webster’s definition of release

and raise him Webster’s definition of small business, because I

think the definition of small business that works for some purposes. It doesn’t necessary apply in this context here.

And you can think about something without thinking about the

things which it relates. You have the quality of being either a good
86

Congressional staffer or a good lawyer, but I want to talk about

small business in a more practical sense, because I hear Mr. Sullivan’s point. He is right. You know, little Mom and Pop outfits is

one thing but 500 person, employees, especially when you are going

to outsource so much of your stuff through contractors, who knows

how that can be done.

I am intrigued, though, and I want to pick up on his point about

the so-called trillion dollar burden we are imposing on business in

this country, and I can relate to that, but I wonder if we think

about what the cost of the compliance regime in this country would

be if it wasn’t on the honor system, people investigating themselves, but if we had a shown-up police force that actually did the

monitoring, came on the premises and monitored. Came on the

premises and recorded, came on the premises and did the reporting. If we had third-party verification rather than the self-reporting

regime we have, I would rather imagine that burden would be a

great deal bigger.

Which leads me to my question. How is range reporting going to

lower that trillion dollar burden in a substantial way if you still

have the burden of knowing and determining yourself through

monitoring and assessment and recording and reporting to yourself, you still have the burden of determining exactly how much

you are managing, how is it going to lower the cost if you just go

ahead, to report it in broad ranges? I can tell you about range reporting. I have got an income that is a whole lot bigger than something I don’t recognize. The range reporting regime we have got for

Congressional income is something that I can’t relate to at all,

bears no relation to my real-life circumstances.

And what I am getting at is if you got to know precisely how

much you are managing and or releasing in order to be able to validly comply with the oath you got to take when you fill out the

short form, just like you got to fill out that oath to fill out the long

form, if you got to know down to the jot and tiddle how much you

are managing, how much you are producing, how much you are

handling in order to fill out a range report, why not go ahead and

submit the precise report? Why not go ahead and say how much

of that trillion dollar burden are we going to relieve by them, by

forcing the small businesses and the medium sized and all to know

precisely how much they are handled but not tell us, to keep that

information secret.

When you add to the fact that you are creating a tremendous incentive for folks to fudge a little bit. The honor system works better, I think, when you require people to be precise, but here you

are actually inviting people to be vague and general in the reporting. Aren’t you going to be inviting people to be vague and general

in their ascertainment and their monitoring?

I am concerned about that. Who can tell me how it is going to

lower the cost and how much it is going to lower the cost if you

still got to know and we are still imposing the burden of finding

out and determining to your own satisfaction so you can take that

oath, just exactly how much stuff you are generating.

Mr. Sullivan, you want to try?

Mr. SULLIVAN. I would love to try to respond to the Congressman.
87

Mr. BARROW. Since I took most of my time leading up to this, I

want you to be quick.

Mr. SULLIVAN. First of all, we are in agreement about the honor

system. I think that really the crux of EPA’s reform is to

incentivize the honor system.

Mr. BARROW. Am I correct in understanding, though, that the

rule still requires the managers to know and to monitor and determine exact, precisely, for them to know exactly how much it is, but

we are still going to require them only to report it in general

terms? And that is somehow going to incentivize them to produce

less?

Mr. SULLIVAN. If I may fully respond to the Congressman’s question, I would like to try and point out that a small firm with 15

employees that wants to manufacture the brass for this distinguished hearing room is given a choice of making sure as a start

up do we act responsibly, and there are a number of reasons why

that person would want to act responsibly and manage the alloy responsibly so that the amount, the small amount of lead that is in

there does not leave this facility, is not emitted or discharged.

That is what is the incentive based in this EPA’s reform. That

is in sharp contrast to the old system that doesn’t recognize this

incredible innovator and entrepreneur who wants to start a domestic manufacturing of brass and says it doesn’t matter if you send

this outside of your facility or you have legally permitted emissions

and discharges, because you are going to have to fill out the same

long form anyway.

So filling out the small form——

Mr. BARROW. It seems to me that if we are going to require them

to know what is in the long form and to determine what is in the

long form, it is not that much weight of a burden for them to tell

us what they already know, what they are already forced to know.

Mr. SULLIVAN. We respectfully disagree. Any burden reduction is

important in small business.

Mr. BARROW. Mr. Najjum, in the 2 seconds I have, I had remaining, I want to ask you, you heard me talk about the situation in

Augusta. Would your folks be willing to come down there and help

us look into the situation at places like Hyde Park? Because we

have got a community that is literally trapped. They can’t, do they

stay, do they go, and we need to bring the resources to bear, to help

them evaluate whether or not staying is a viable option and how

to deal with the unrest and the anxiety and the uncertainty of the

folks who want to stay but also want to make sure that their

neighborhoods are clean.

Can you do something about that? Can you come down and look

at Hyde Park?

Mr. NAJJUM. We can talk with your staff about it, and if that

means going down to look and see if there is something the IG can

do, certainly.

Mr. BARROW. Thank you.

Mr. WYNN. Thank you, Mr. Barrow.

At this time the Chair would recognize Mr. Pallone, sponsor of

the TRI bill.
88

Mr. PALLONE. Thank you. I am going to try to get in a question

or two about TRI, and then I want to ask an environmental justice

question.

Ms. O’Neill, in the GAO report they specifically say at one point

here that the EPA’s TRI burden reduction rule will reduce the

amount of information about toxic chemical releases previously

available to the public, and then it says that taken by facility some

3,500 facilities no longer have to report any quantitative information about their chemical use and releases to the TRI.

With regard to EPA’s assertion the critical information would be,

would not be lost. The agency estimates that less than 1 percent

of the total pounds of chemical releases would on longer be reported, however, we found the impact on data available to many

communities could be more significant than EPA’s National totals

indicate, particularly at the local level.

Do you disagree with any of those things?

Ms. O’NEILL. I disagree that communities will not be getting information. They will be getting information, and they can assume,

because it is range related.

Mr. PALLONE. But they are saying there is going to be less information and that a lot of facilities won’t be providing any information. Do you agree with that?

Ms. O’NEILL. Ninety-nine percent of the data will still be available. There will be some cases where it will be less data, but the

most important data is available to the community and which is

what chemical is being managed there, and that is the most important thing. And there is a whole suite of other information available to local communities. I think it is really important that we say

that TRI is one set of data.

Mr. PALLONE. OK.

Ms. O’NEILL. And we really need to get, put that in context with

other environmental data out there that I think is equally as important to the communities.

Mr. PALLONE. See, my problem is, and I will be honest with you,

and I am not trying to denigrate you in any way, the whole notion

of right-to-know in my opinion, I am only speaking for myself, is

based on the idea that we can’t trust industry to do the right thing,

we can’t even trust agencies and the Government, whether it be

the Federal or the State or even Congress to do the right thing.

And the best thing is to have transparency, throw everything out

there as much as possible because the public will be, will react and

take on whoever has to be taken on because we can’t trust the industry or the Government to do it.

So when you say that by raising the threshold you provide this

incentive, you create an incentive for pollution prevention, it kind

of goes against the whole philosophy of the right to know because

you are saying, well, we will incentivize the companies or the potential polluter, if you will, and provide theoretically less information to the public.

Well, the whole premise of the right-to-know is that we need to

incentivize the public, not the potential polluter because we can’t

trust the company or the Government to do the right thing.
89

I know that Mr. Stephenson at one point, how does raising the

threshold achieve the objective of less toxic releases, I don’t see it.

So let me just ask you one thing.

In proposing the new rule did the EPA conduct any studies on

reporting reductions, creating incentives for pollution prevention?

Prior to the new rule did the EPA conduct any economic analysis

demonstrating an incentive affect with reduced reporting?

In other words, you state that the EPA is working to determine

the effectiveness of these incentives, but shouldn’t they have determined the effectiveness of those incentives before changing the rule

rather than hoping that this incentive is going to work? I don’t, it

doesn’t seem to me you have enough evidence that the incentive

works.

Ms. O’NEILL. Well, first of all, EPA did do a lot of analysis. They

did economic analysis, they looked at a number of chemicals that

might be affected. We looked at by ZIP Code communities that

might be affected. We looked at the number forms that might

switch over. So there was a lot of analysis that was put in this.

There was discussions, it is my understanding there was discussions in terms of do companies if they have this opportunity, would

they have incentive? I don’t know in terms of analysis——

Mr. PALLONE. Do you really have any evidence? I have to ask,

I want to go to one more question unrelated, but do you really have

any evidence that the incentive will work?

Ms. O’NEILL. In terms of the incentive?

Mr. PALLONE. Yes.

Ms. O’NEILL. I will have to get back to you, quite frankly, to see

what studies are there, but we can get back to you on that.

Mr. PALLONE. All right. I would appreciate that.

I wanted to ask the Inspector General one question. I had a case

of environmental, what I considered environmental racism. You

may not be familiar with it. With the Ringwood Superfund Site in

New Jersey, and this was a site where it was taken off the Superfund list, and myself and my two Senators made an issue of the

fact that we didn’t think there was proper cleanup, that we didn’t

think that the residents were properly informed about what was

going on. We asked the IG to look into it from an environmental

racism point of view because it was primarily a Native American

community.

The IG, thankfully, came back and said you have got to put this

back on the Superfund list, you have got to do a more thorough

cleanup, you didn’t do enough to inform the residents about this,

and all that happened. It is back on the list, a more thorough

cleanup is being done. They are out there doing more public information hearings.

But they said that there was no evidence that the reason this

happened, all these bad things happened was because of social, cultural, or environmental ethnic reasons. And I guess my question is

how do we prove that? This was a case of total negligence. They

didn’t do what they were supposed to do, and I believe it was because it was a Native American community. But it is hard to say,

to pinpoint evidence, because they didn’t do what they were supposed to do. They didn’t have the public meetings, they didn’t have,

they didn’t do the proper cleanup. I don’t think anybody was step-
90

ping forward to say, we didn’t do this because you were Native

American.

So I just question that evidentiary requirement. What do you require to show that the reason all these bad things happened and

need to be corrected was related to the fact that these were Native

Americans? How, what is the evidentiary basis? They said there is

no evidence, but there is not much evidence of anything because

they didn’t do what they were supposed to do.

Mr. NAJJUM. I understand the question and the concern, Congressman. I understand your frustration, but when we go as an IG

looking for an audit or an evaluation, we have to have evidence and

various ways to get it. We went through, in the case of Ringwood,

yards of e-mails and documentation, anything that we could find

that would show an indication or evidence that the actions or lack

there of were based on the Native American population.

Mr. PALLONE. In other words, you have to have somebody actually saying that we didn’t do this or we were negligent or we didn’t

report to these people because they are Native American in order

for you to come to that conclusion? Nobody is going to say that.

Mr. NAJJUM. Sometimes they do, sir. When you are going back

looking through the records sometimes there are indications or

there would be evidence that actions were taken or not taken in

the official documents and also in the e-mails and other things that

go along with that, that would show that people were making, or

taking actions based on that. But short of that, yes, it is very difficult for an IG to look at something without comparing it to something else and say in nine out of 10 cases they did this, and in this

one case they did that.

But then we would still be ascribing a particular motive to that,

which may or may not be it. That is the problem we face, so when

we say there was no evidence, we are not coming to a conclusion

that it happened or it didn’t happen. What we are saying is we

can’t prove that without evidence.

Mr. PALLONE. Well, I am going to, I know my time is up, but I

am going to follow up if I could, Mr. Chairman, with some questions on this, because I really believe that more needs to be done

to look at the cause, whether this really was an environmental justice issue.

But I am sorry. Thank you. Thank you for letting me go over a

little bit.

Mr. WYNN. At this time the Chair would recognize Mrs. Capps

for questions.

Mrs. CAPPS. Thank you. I have three people I would like to question in this very short time period.

A brief question, Mr. Nakayama, during the hearing you stated

that the EPA Office of Environmental Justice has participated in

very few agency rulemaking efforts.

Mr. NAKAYAMA. That is true, because we depend on——

Mrs. CAPPS. Let me ask you the question. If EPA were about to

develop a rule that on its face would apply primarily to minority,

urban, low-income communities, wouldn’t that be exactly the kind

of rule that your Office of Environmental Justice should be actively

involved in in order to insure that EJ impacts are addressed?
91

Mr. NAKAYAMA. We are trying to integrate environmental justice——

Mrs. CAPPS. You believe you should be involved in those kind

of——

Mr. NAKAYAMA. I believe the environmental justice activities impacts should be considered during the rulemaking. Now, we take

the position that really we need to build the capability of the program office that is developing the rule so that they need to take

the lead and conduct that EJ analysis, because they have special

expertise, for example, on air rule, they may have expertise of the

demographics, their air modeling.

Mrs. CAPPS. So you don’t believe you should be actively part of

the rulemaking.

Mr. NAKAYAMA. We should be involved, but the primarily lead,

we are trying to develop the capability to have the program office

be the lead.

Mrs. CAPPS. All right. Let me turn to Mrs. O’Neill, and this will

take a little bit of a narrative because it is a company in my district that has been reporting its ammonia release data to TRI.

As you know, this is a vegetable company in Santa Maria, CA,

I happen to represent. I am very happy to. As you know, exposure

to ammonia can irritate the skin, eyes, and respiratory system. Extreme exposure may cause death. The company’s trend line on TRI

starting in 1989, has been to reduce its ammonia releases year

after year. In 1989, the company released 14,000 pounds of ammonia. It is now down to 5,400 in the last report. This shows, in my

opinion, that TRI is working, because it is motivating a company

like Pick Sweet to lower its releases. And it is successful and has

something to brag about as it is doing that.

What I am concerned about is companies like this dropping out

of detailed reporting. Requiring public disclosure provides a powerful incentive for facilities to continue to decrease toxic releases, provides community residents and first responders with vital information in cases of accidental releases, in cases of anything happening

on the site. The TRI rule as proposed would have allowed this company to stop providing detailed reports to local emergency planning

commissions.

If it weren’t for the changes to the proposed rule, would this company have been required to file detailed reports and provide that

information to the local first responders? They were only 400

pounds away from the 5,000-pound disclosure threshold, and if

they had gotten below that and didn’t have to report it all, the public health people would not have known that there was 4,500

pounds of release.

I would like your reaction.

Ms. O’NEILL. Well, again, on the Emergency Right-to-Know Act,

the TRI report for EPCRA is broken out into several different sections. So under this we are not affecting the section for emergency

planners at all.

Mrs. CAPPS. No matter what the level?

Ms. O’NEILL. No matter what the level. This is just for TRI reporting. So EPCRA has several sections in it. OK. So some emergency responders use the TRI reports as supplemental information,

and in that case they will still understand, in this particular case
92

they will still have an understanding of what the chemicals of concern are there. But they rely on the different EPCRA section for

all the hazardous materials that are there and their locations. So

I just want to point that out.

Mrs. CAPPS. Right. And so we want, I am saying wouldn’t,

shouldn’t that continue no matter what the release so that

they——

Ms. O’NEILL. It does continue for emergency response. What, you

are talking about two different——

Mrs. CAPPS. For emergency response it does?

Ms. O’NEILL. Well, this, the final rule does not affect EPCRA associated with emergency response reporting. OK. So what you are

talking about is the TRI reports where the, for the impact for the

final rule. And so depending on the type of chemical, and I don’t

have a list in front of me, I am not sure if they would meet the

threshold. I don’t know what else they have in their waste management. So they might have had to go further down. They might not

have been 400 pounds.

Mrs. CAPPS. They wouldn’t have to report after they got below a

certain——

Ms. O’NEILL. Well, it is a little bit more complicated than that

because it is 5,000 for everything but there is a cap on the actual

type of management and releases, which is 2,000 pounds. So it

may, it actually may incentivize them to go down even further. It

may incentivize them.

Mrs. CAPPS. Well, is there a way to find that out? I would like

to follow up with you because——

Ms. O’NEILL. If you, yes, if you could submit the question so I

know what the particular chemical is and the facility, it might be

a lot easier to get back to you.

Mrs. CAPPS. I will.

I am thinking about first responders to an incident there to any

kind of incident in the public where they need to have some way

of knowing what they are walking into.

Ms. O’NEILL. Right, and again, what, the final rule is not for section 312 of EPCRA, which is the primary source of information for

first responders.

Mrs. CAPPS. Thank you. I just, I hope, may I have an extra few

seconds to ask, I would like to get Mr. Stephenson to be able to

comment on some of these incentives I have been talking about.

The reporting and disclosure requirements in TRI I believe myself are very important incentives. Data is, for this company supports that conclusion. They worked hard to get their releases down.

Other than the release of ammonia and accidents do happen, they

are heading in the right direction. Releases were going down.

What, I want your response if I could ask indulgence of the

Chair, to——

Mr. STEPHENSON. That is our point exactly. If you increase the

threshold for reporting from 500 to 2,000 you are de-incentivizing

them to go much below 2,000. So, if there is no burden reduction,

why not keep the rule the way it was at 500 pounds? We think that

will provide the incentives necessary to keep——

Mrs. CAPPS. Bring it all the way down.

Mr. STEPHENSON. Bring it all the way down.
93

Mrs. CAPPS. Thank you.

Mr. WYNN. I would like to thank all the witnesses on this panel

first for your testimony but also for your patience. I know we had

a pretty considerable break. We appreciate your presence here, and

as I said, members may be submitting written questions.

Thank you very much.

At this time I would like to call forth our second panel.

While they are coming up, I would like to ask unanimous consent

that two documents be inserted in the record. The first is a March

6, 2007, letter to the Honorable John Dingell and the Honorable

Joe Barton signed by 40 individuals and public interest organizations expressing support for the Environmental Justice Act of 2007,

and the second is a September 28, 2007, Dear Representative letter

from 307 organizations urging support for H.R. 1055, the Toxic

Right-to-Know Protection Act.

Mr. SHIMKUS. Mr. Chairman.

Mr. WYNN. Yes.

Mr. SHIMKUS. I think I am being drafted a unanimous consent

as we speak.

Mr. WYNN. Well, what I would like to do if there are no objections, the two letters that I have just referenced will be submitted

to the record, and if at some point you would like to introduce or

make a unanimous consent request, the Chair will certainly entertain that.

Hearing no objections the two items that are mentioned will be

entered into the record.

Mr. WYNN. I would like to welcome our second panel and introduce them to you.

First we have Mr. Hilary O. Shelton, director, National Association for the Advancement of Colored People, Washington Bureau.

Second we have Dr. Robert Bullard, Ware professor, Department

of Sociology, director, Environmental Justice Resource Center,

Clark Atlanta University.

Third we have Mr. Jose Bravo, executive director, Just Transition Alliance on behalf of the Communities for a Better Environment.

Fourth, Mr. Andrew Bopp, director of public affairs, Society of

Glass and Ceramic Decorators.

Fifth, Mr. Alan Finkelstein, assistant fire marshal, Strongsville

Fire and Emergency Services.

And last but certainly not least Ms. Nancy Wittenberg, assistant

commissioner, New Jersey Department of Environmental Protection.

Again, I would like to welcome you, offer you 5 minutes each for

your statements. Your full prepared testimony will, of course, be

entered into the record.

Mr. Shelton.

STATEMENT OF HILARY O. SHELTON, DIRECTOR, NATIONAL

ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, WASHINGTON BUREAU, WASHINGTON, DC

Mr. SHELTON. Good morning, Chairman Wynn and members of

the subcommittee. I thank you for the opportunity this morning to

testify before you.
94

As you mentioned, my name is Hilary Shelton, and I am the director of the Washington Bureau of the National Association for

the Advancement of Colored People. I have been invited here today

to discuss environmental justice and communities’ rights to know.

Sadly, more than 40 years after the enactment of the Civil

Rights Act of 1964, and the Fair Housing Act of 1968, we are still

a much too segregated society. Centuries of legal segregation and

Jim Crow and continuing America in which the amount of education received and the salary you earn is determined in a large

part, unfortunately, by the color of your skin. And as a result,

Americans still living in communities marked by concentrations of

people who look alike. Even sadder, it is communities of color,

neighborhoods with large concentrations of racial and ethnic minority Americans which bear a disproportionate share of the Nation’s

air, water, and toxic waste pollution problems. And since the places

where people live and work have an enormous impact on their

health, this disproportionate exposure to pollution leads to a more

racial and ethnic minority Americans suffering from ill health.

And perhaps the saddest part of all this is that the Federal Government has a proven track record of being less responsive to the

needs of communities if color when pollution is a problem. As a

seminal study in the National Law Journal in 1992, stated, there

is a, ‘‘racial divide in the way the United States Government cleans

up toxic waste sites and punishes polluters. White communities see

faster action, better results, and stiffer penalties than communities

where blacks, Hispanics, and other racial minorities live.’’

There have been several conclusive studies that demonstrate, beyond a shadow of a doubt, that communities of color are disproportionately targeted by polluters. As the United Church of Christ,

‘‘Toxic Wastes and Race in Twenty, 1987–2007,’’ concluded, race is

the most significant independent predictor of commercial hazardous waste facilities locations. In fact, a December 2, 2005, report

by the Associated Press reported that 79 percent of African-Americans live in polluted neighborhoods.

So what is the impact and cost of these disparities to communities of color? Perhaps most importantly it has been effectively argued that disparities in pollution are a leading cause of health disparities among America’s populations. Many of the principle causes

of death in the United States today, that is cancer, chronic lung

disease, and diabetes, have significant environmental causes. Furthermore, the environmental causes of non-lethal conditions, including birth defects, asthma, learning disabilities, and nervous

system disorders, are also well documented.

The NAACP recognizes that one of the major hurdles facing this

committee, as well as the Federal Government, is the fact that

many of the zoning laws and regulations which determine who is

exposed to hazardous pollution are made at the local level. This,

however, does not and should not absolve the Federal Government

from taking action to try to mitigate environmental injustices and

help communities help themselves.

The NAACP strongly supports the two bills that are the subject

of today’s hearings; H.R. 1103, the Environmental Justice Act of

2007, and H.R. 1055, the Toxic Right-to-Know Protection Act. If enacted, these bills will provide communities with powerful tools in
95

their struggle against pollutants. By providing communities with

details about the quantities and quality of the pollution in their

air, water, and soil, they can make informed decisions and demands on their elected officials. An informed community is an empowered community.

In my written testimony I elaborate on why the NAACP feels

this legislation is necessary and important. For the record, I have

also included in my testimony an excerpt from this month’s Crisis

Magazine, the magazine of the NAACP. The cover story of the

July-August edition is on environmental justice, and within this article are several good examples of individuals and communities who

have fought against polluters and pollution.

I would again like to thank Chairman Wynn and Congresswoman Solis, Congressman Pallone and the other members of this

committee for all of your efforts on this important issue.

I would also like to thank Leslie Fields of the Sierra Club, Environmental Justice Department, for her assistance in preparing this

statement, as well as the input of the group called Advocates for

the Environmental Human Rights.

With that I welcome your questions.

[The prepared statement of Mr. Shelton follows:]

STATEMENT OF HILARY SHELTON

Good morning Chairman Wynn and members of the subcommittee. I thank you

for the opportunity to testify before you today.

My name is Hilary Shelton, and I am the Director of the Washington Bureau of

the National Association for the Advancement of Colored People, the NAACP. The

Washington Bureau is the public policy advocacy branch of our Nation’s oldest, largest and most widely recognized grassroots civil rights organization. I have been invited here today to discuss environmental justice and communities’ right to know.

It is sad but true that today, more than forty years after Dr. King spoke to us

in his ‘‘I Have a Dream’’ speech of one nation in which we all lived together under

God, and despite the Civil Rights Act of 1964, the Voting Rights Act of 1965 and

the Fair Housing Act of 1967 we are still a much too segregated society. Centuries

of legal segregation and Jim Crow and a continuing America in which the amount

of education you receive and the salary you make is determined in large part by

the color of your skin have resulted in many Americans still living in communities

marked by a concentration of people who look alike.

Even sadder, it is communities of color, neighborhoods with large concentrations

of racial and ethnic minority Americans, which bear a disproportionate share of the

Nation’s air, water and toxic waste pollution problems. And since the places where

people live and work have an enormous impact on their health, this disproportionate

exposure to pollution leads to more racial and ethnic minority Americans suffering

from ill health—both physical and mental.

And perhaps the saddest part of this all is that the Government, our American

Government, has a proven track record of being less responsive to the needs of communities of color when pollution is a problem. As a seminal study on the National

Law Journal in 1992 stated, there is a ‘‘...racial divide in the way the United States

Government cleans up toxic waste sites and punishes polluters. White communities

see faster action, better results and stiffer penalties than communities where

Blacks, Hispanics and other minorities live.’’

There have been several conclusive studies that demonstrate, beyond a shadow

of a doubt, that communities of color are disproportionately targeted by polluters.

Perhaps the most famous of these studies, by the United Church of Christ, is the

1987 study Toxic Wastes and Race in the United States, and the more recent followup, Toxic Wastes and Race at Twenty 1987–2007. Both the 1987 and the 2007 UCC

reports found race to be the most significant independent predictor of commercial

hazardous waste facility locations when socio-economic and other non-racial factors

are taken into account. In fact, as I am sure we will hear from more than one source

today, in the 2000 study the UCC study found that neighborhoods within 3 kilo-
96

meters of commercial hazardous waste facilities are 56 percent people of color

whereas non-host areas are 30 percent people of color.

So what is the impact and cost on communities of color of these disparities? Perhaps most importantly, it has been effectively argued that disparities in pollution

are a leading cause of the health disparities among America’s populations. Many of

the principal causes of death in the United States today (cancer, chronic lung disease and diabetes) have significant environmental causes. Furthermore, the environmental effects of non-lethal conditions (including birth defects, asthma, learning disabilities and nervous system disorders) are also well documented.

The NAACP recognizes that one of the major hurdles facing this committee, as

well as the Federal Government, is the fact that many of the zoning laws and regulations which determine who is exposed to hazardous pollution are made at the local

level. This however does not, and should not, absolve the Federal Government from

taking action to try to mitigate environmental injustices and help communities help

themselves.

The NAACP strongly supports the two bills that are the subject of today’s hearing, H.R. 1103, the Environmental Justice Act of 2007 and H.R. 1055, the Toxic

Right to Know Protection Act. If enacted, these bills will provide communities with

powerful tools in their struggle against pollutants. By providing communities with

details about the quantity and quality of pollutants in their air, water or soil, they

can make informed decisions and demands of their elected officials. An informed

community is an empowered community, and bills like H.R. 1103 and H.R. 1055 will

provide individuals and neighborhoods with much-needed tools in their struggles to

safeguard themselves and their families.

H.R. 1055 corrects a January 2007 regulation by the U.S. Environmental Protection Agency (EPA) which would allow up to ten times more pollution to be released

by a facility before that facility is required to submit to EPA a detailed report of

its emissions. EPA collects such reports in a publicly accessible database known as

the Toxic Release Inventory or ‘‘TRI.’’ TRI has proven to be an effective tool for raising public awareness of the amounts and kinds of toxic pollution released by a variety of facilities, and providing support for public advocacy that has reduced toxic

pollution levels. Without H.R. 1055, communities that are disproportionately burdened with toxic pollution will not have the vitally important information needed

to protect their health and environment.

For example, African Americans living in Mossville, Louisiana have been documented by EPA and a Federal Government health agency as having elevated levels

of dioxin, an extremely toxic chemical that can cause cancer and harm the normal

development of the unborn and children. Using TRI reports that were collected by

EPA prior to its January 2007 rule change, the residents of Mossville were able to

identify the industrial facilities operating near their community that release the

same unique dioxin compounds that have been detected in their blood and environment. Without TRI reports, the people of Mossville would not have the ability to

find the sources of their dioxin exposures, and call on EPA to take action that protects their health and the health of future generations.

By requiring TRI reports to provide more complete information about toxic pollution, House Bill 1055 supports the right of communities to access reliable information regarding the pollution that affects their health and environment.

H.R. 1103 also takes tremendous strides towards ensuring environmental justice.

By codifying executive order 12898, H.R. 1103 will strengthen compliance and enforcement of environmental justice goals at the Federal level. This Executive Order

reinforced the promise of the Civil Rights Act of 1965, which prohibits discrimination in programs receiving Federal funds. In the years since Executive Order 12898

was issued, the EPA and other Federal agencies have adopted commitments to environmental justice. Yet numerous studies have concluded that significant action is

still needed for EPA to integrate equity concerns into their operations in a way that

will end this form of injustice for minority and low-income groups. H.R. 1103 would

ensure that Executive Order 12898 is carried out faithfully and without delay.

I would like to close my statement with a few examples of why H.R. 1103 and

H.R. 1055 are necessary and the good they can do. For the record, I would like to

include in my written testimony an excerpt from this month’s Crisis Magazine, the

Magazine of the NAACP. The cover story of the July / August edition is on Environmental Justice, and within the articles are several good examples of individuals and

communities who have fought against polluters and pollution.

Included in these articles is the story of Peggy Shepard, the co-founder of WE

ACT, a community group focusing on cleaning up communities of color in New York

City. Despite a strong organizational structure which was able to harness public

outrage into demonstrations and effective legal strategies, Ms. Shepard reports that

‘‘science, technology and research are also indispensable tools for a community in
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its struggle to create a safe and sustainable environment. Its lack is a void that contributes to communities of color being excluded from decision-making positions.’’

I would also like to thank Congressman Wynn, Congresswoman Solis, Congressman Pallone and the other members of this subcommittee for all of your efforts on

this important issue. I would also like to thank Leslie fields of the Sierra Club’s Environmental Justice Department for her assistance in preparing this statement, as

well as the input of the group Advocates for Environmental Human Rights.

I will happily take your questions.

Mr. WYNN. Thank you very much for your testimony.

Dr. Bullard.

STATEMENT OF ROBERT D. BULLARD, WARE PROFESSOR, DEPARTMENT OF SOCIOLOGY; DIRECTOR, ENVIRONMENTAL

JUSTICE RESOURCE CENTER, CLARK ATLANTA UNIVERSITY,

ATLANTA, GA

Mr. BULLARD. Good afternoon. My name is Robert Bullard, and

I direct the Environmental Justice Resource Center at Clark Atlanta University. Mr. Chairman and members of the subcommittee,

I want to thank you for holding this hearing.

This year marks the 25th anniversary of Warren County, NC,

PCB Landfill protests in 1982, that made headlines and ignited the

environmental, the national environmental justice movement. This

year also represents the 20th anniversary of the landmark, ‘‘Toxic

Wastes and Race at Twenty, Toxic Wastes and Race in the United

States Report,’’ published by the United Church of Christ.

To commemorate this milestone, the UCC asked me to assemble

a team of researchers to update that report. We did, and that report is titled, ‘‘Toxic Wastes and Race at Twenty, 1987–2007.’’ We

released that report in March in Washington, DC.

The findings, people of color make up the majority, 56 percent of

those living in neighborhoods with a 2-mile radius of the Nation’s

commercial hazardous waste sites, nearly double the percentage in

areas 2 miles, more than 2 miles.

People of color make up more than two-thirds, 69 percent, of the

residents in neighborhoods with clustered facilities. It is easier to

get two facilities if you have one. It is easier to get five if you have

four.

Nine out of 10 EPA regions have racial disparities in the location

of hazardous waste facilities. I wrote a book in 1990, called,

‘‘Dumping in Dixie.’’ This is not a Southern phenomena. It is national.

Forty of 44 States, 90 percent of the hazardous waste facilities

have disproportionately high percentages of people of color in host

neighborhoods.

Conclusions: People of color are concentrated in neighborhoods

and communities with the greatest number of facilities and people

of color in 2007, are more concentrated in areas with commercial

hazardous waste facilities than they were in 1987.

Clearly, low-income and communities of color continue to be disproportionately and adversely impacted by environmental toxins. It

has now been more than 13 years since President Clinton signed

Executive order 12898, however, environmental justice still eludes

many communities across this Nation.
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Numerous studies have documented that people of color in the

United States are disproportionately impacted by environmental

hazards in their homes, schools, neighborhoods, and workplace.

Schools are not safe in some communities. A 2001, report indicated

that over 600,000 school children in Massachusetts, New York,

New Jersey, Michigan, and California were, live within, these

schools were located within a half a mile of a Federal Superfund

site.

When we look at the reports from GAO, from the EPA’s Inspector

General, it is clear that environmental justice from the Executive

order is not being implemented. Numerous studies, the most recent

study done by the Associated Press shows that 79 percent of African-Americans live in the most dangerous facilities where, related

to TRI.

If you look at the whole question of the weakening of TRI, it is

important to note that when you overlay the toxic release inventory

database facilities with the commercial hazardous waste facilities

and the other facilities that is located in communities of color and

low-income communities, you have saturated communities. You

have sacrifice zones. You have communities that not only bear a

disproportionate burden but in many cases are fence-lined with facilities. And so when you tinker and tamper with a database that

has been used for many years for longitudinal data and for comparative studies, it is important to understand that it is not just

one facility that you are talking about or one database. You are

talking about communities that are suffering.

There are more than 36 recommendations from the report. There

are 10 that were highlighted and lifted out and more than 100 organizations around the country endorsed them. It is important to

note that two of those 10 recommendations that were top priorities

included passing a National Environmental Justice Act codifying

the Executive order and protecting and enhancing community

right-to-know, worker right-to-know, community and worker rightto-know so that H.R. 1103, Environmental Justice Act of 2007, and

H.R. 1055, Toxic Right-to-Know Protection Act, fall hand in hand

with the findings and the conclusions of the report.

Getting Government to respond to environmental and health concerns of low income and people of color communities has been an

uphill struggle. The time to act is now. Our communities cannot

wait another 20 years. Achieving the environmental justice for all

makes us a much healthier, stronger, and more secure Nation as

a whole.

I will be pleased to answer any questions that you may have.

Thank you very much.

[The prepared statement of Mr. Bullard follows:]
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Mr. WYNN. Thank you very much for your testimony.

Mr. Bravo.

STATEMENT OF JOSE BRAVO, COMMUNITIES FOR A BETTER

ENVIRONMENT, EXECUTIVE DIRECTOR, JUST TRANSITION

ALLIANCE, CHULA VISTA, CA

Mr. BRAVO. Thank you, Mr. Chairman, and thank you, members

of the subcommittee for inviting us here to give testimony today.

On behalf of Communities for a Better Environment and the Just

Transition Alliance, I would like to thank you for inviting me to

speak on the important issues of right-to-know and environmental

justice.

The bulk of my testimony is based on the courageous work of

Communities for a Better Environment, where I serve as a board

member. But my comments here today are also endorsed by the

Just Transition Alliance, which I am the executive director of.

Communities for a Better Environment is a California communitybased environmental organization working for environmental justice in highly-industrialized areas of California, especially in communities of color and low-income communities that have been

shown to bear the higher, a higher burden in concentration of toxic

sources.

We believe that with the weakening of the toxic release inventory

California loses more ZIP Codes reporting to TRI than any other

State in the Nation. The weakening of TRI by setting higher reporting thresholds causes California data, lost data from all reporting facilities for 64 of 502 ZIP Codes, and other California ZIP

Codes also lose important data. This is tragic, because TRI has

been so useful in identifying and prioritizing pollution sources, because reporting is so easy to do and because the act of reporting

itself makes companies much more aware of their toxics use. Consequently, weakening, the weakening of the, of TRI must be rolled

back.

CBE has used the toxic release inventory since its inception as

a fundamental right-to-know tool. For example, one of the earliest

analyses documenting environmental racism was the 1989, CBE

‘‘Richmond at Risk’’ report. This analysis of TRI, Superfund, and

demographic data demonstrated that much higher concentrations

of topic sources and emissions are sited in areas with the highest

populations of people of color. Reports like these were crucial to

community-based campaigns that led to the development of new

environmental justice policies by public agencies and the phase-out

of unnecessary chemical use.

CBE and many other community-based groups have continued to

use the toxic release inventory in concert with demographic data to

map cumulative exposure from large numbers of smaller toxic

sources, which individually may have posed lower health risks, but

because of geographic concentration presented formidable risks.

CBE continued to use the data to document increased risks in our

1998, ‘‘Building a Regional Voice for Environmental Justice’’ report.

And in hundreds of individual research efforts throughout the

years. Frequently, community members have used TRI data themselves to push for local improvements.
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Our 2004, report found in southern California that African-Americans are a third more likely and Latinos nearly twice as likely to

live in a census tract containing a facility emitting high-priority

TRI pollutants. The racial differences in exposure persisted even

when data was controlled for income, land use, and manufacturing

presence. The racial chasm is also larger than emissions are, also

larger when emissions are carcinogenic, the more dangerous the facility, the higher the likelihood that minorities are concentrated

nearby.

The continued undisrupted concentration of large numbers of industrial polluters in communities of color with highest incidents of

health problems, including asthma, is a major reason why TRI reporting thresholds need to be restored to the lower thresholds for

reporting.

Reporting thresholds back down to 500 pounds instead of the

new relaxed 2,000 pound threshold is crucial. Not only do concentrations of large numbers of smaller emitters cause toxic

hotspots, but individual companies’ emissions can fluctuate or

grow. Failure to report at the lower significant level can cause companies to miss reporting when their emissions increase because

they are accustomed to reporting. This can lead to many years of

delay in identification of the problem emissions. In one case of a

steel company located in a residential neighborhood in the Bay

Area, the company’s toxic emissions were causing frequent odor

problems, and emissions were about 500 pounds, but lower than

2,000 pounds, but growing. If TRI thresholds had been weakened

at that time, the trend in documented emissions increases would

have been identified. Neighbors pushed for cleanup, resulting in

the company agreeing to install a carbon control plant.

Some of the worst carcinogens such as methylene chloride and

perchloroethylene previously widely used in California manufacturing are now more rarely used, thanks to community campaigns

using TRI. These have been a widespread phase out by scores of

California manufacturers of many carcinogens and early phase out

in the past of ozone-depleting chemicals due to community publications of TRI data on individual companies and on regional concentration facilities, of facilities. Good and comprehensive TRI reporting was not only responsible for public health improvements in

the past, but will also provide crucial safeguards for overuse of

other toxic chemicals and toxic hotspot concentrations, which is

still, unfortunately, widespread.

[The prepared statement of Mr. Bravo follows:]

TESTIMONY OF JOSE BRAVO

Mr. Chairman and members of the subcommittee:

On behalf of Communities for a Better Environment (CBE) and the Just Transition Alliance (JTA) I would like to thank you for inviting me to speak on the important issues of public right-to-know and environmental justice.

The bulk of my testimony is based on the courageous work of CBE, where I serve

as a board member. But my comments here today are also endorsed by the Just

Transition Alliance for which I am executive director. Communities for a Better Environment is a California community-based environmental organization working for

Environmental Justice in highly-industrialized areas of California especially in communities of color and low income communities that have been shown to bear a higher burden of concentration of toxic sources.
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• With the weakening of the Toxic Release Inventory, California loses more zip

codes reporting to the TRI than any other state in the nation. The weakening of

the TRI by setting higher reporting thresholds causes California to lose data from

all reporting facilities for 64 out of 502 zip codes, and the other California zip codes

also lose important data. This is tragic, because TRI has been so useful in identifying and prioritizing pollution sources, because reporting is so easy to do, and because the act of reporting itself makes companies much more aware of their toxics

use. Consequently the weakening of the TRI must be rolled back. • CBE has used the Toxics Release Inventory (TRI) since its inception, as a fundamental Community Right-to-Know tool. For example, one of the earliest analyses

documenting environmental racism was the1989 CBE ‘‘Richmond at Risk: report.

This analysis of TRI, Superfund, and demographic data demonstrated that much

higher concentrations of toxics sources and emissions are sited in areas with the

highest populations of people of color. Reports like these were crucial to communitybased campaigns that led to the development of new Environmental Justice policies

by public agencies, and to phaseout of unnecessary chemical use. • CBE and many other community-based groups have continued to use the TRI

in concert with demographic data to map cumulative exposure from large numbers

of smaller toxic sources, which individually may have posed lower health risks, but

because of geographic concentration presented formidable risks. CBE continued to

use the data to document increased risks in our 1998 ‘‘Holding Our Breath’’ report,

in our 2004 ‘‘Building a Regional Voice for Environmental Justice’’ report, and in

hundreds of individual research efforts throughout the years. Frequently community

members have used the TRI data themselves to push for local improvements. • Our 2004 report found in southern California that African-Americans are a third

more likely and Latinos nearly twice as likely to live in a census tract containing

a facility emitting high-priority TRI pollutants. The racial differences in exposure

persisted even when data was controlled for income, land use, and manufacturing

presence. The racial chasm is also larger when emissions are carcinogenic ‘‘the more

dangerous the facility, the higher the likelihood that minorities are concentrated

nearby. Mobile sources of pollution just made this problem worse. • The continued undisputed concentration of large numbers of industrial polluters

in communities of color with the highest incidences of health problems (including

asthma) is a major reason why the TRI reporting thresholds need to be restored to

the lower thresholds for reporting. • Putting the TRI reporting thresholds back down to 500 lbs instead of the new

relaxed 2,000 lb. threshold is crucial. Not only do concentrations of large numbers

of smaller emitters cause toxic hotspots, but individual companies’ emissions can

fluctuate or grow. Failure to report at the lower significance level can cause companies to miss reporting when their emissions increase because they are not accustomed to reporting. This can lead to many years of delay in identification of problem

emissions. In one case of a steel company located in a residential neighborhood in

the Bay Area, the company’s toxic emissions were causing frequent odor problems

and emissions were above 500 lbs., but lower than 2,000 lbs, but growing. If the

TRI threshold had been weakened at the time, the trend in documented emissions

increases would not have been identified. Neighbors pushed for cleanup, resulting

in the company agreeing to install a carbon control system at the plant.

• CBE reports based on TRI data led directly to phase out of toxic chemicals at

many industrial facilities, which operated even better without these chemicals. For

example, after public campaigns based on TRI data, many companies using toxic

solvents as degreasing agents found that they could eliminate the production steps

introducing grease in certain metals processing, so that degreasing with toxic solvents became completely unnecessary. Other companies found that toxic cleaning

solvents could be replaced with soap and water! Of course this did not cause the

phaseout of all toxic chemicals, but it resulted in phaseout of many of the most unnecessary uses of toxics for many chemicals. It also pushed many companies to voluntarily minimize usage until alternatives could be phased in.

• Some of the worst carcinogens such as methylene chloride and perchloroethylene

previously widely used in California manufacturing are now more rarely used,

thanks to community campaigns using TRI data. There has been a widespread

phaseout by scores of California manufacturers of to community publications of TRI

data on individual companies and on regional concentrations of facilities. Good and

comprehensive TRI reporting was not only responsible for public health improvements in the past, it will also provide crucial safeguards for future overuse of other

toxic chemicals and toxic hotspot concentrations which still are unfortunately widespread.

• In the past, CBE identified many companies that failed to report to the TRI,

skewing the data. To do this, CBE had to find data through painstaking research
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of individual local permit information (which is very inaccessible to the public, frequently taking months to receive). CBE succeeded in getting the non-reporting companies to submit their data to the publicly accessible TRI. Even more importantly,

CBE won many dozens of EPA-approved settlements with these companies in which

we convinced the companies to completely phase out use of the toxic chemicals in

lieu of paying penalties for past failure to report. We helped the companies identify

pollution prevention options and consultants, who often found that companies would

MAKE money from chemical phaseout. As a result, millions of pounds of toxic, cancer-causing, and ozone-depleting chemicals were completely phased out by dozens of

California companies.

• While community organizations like CBE have used the TRI data successfully

for decades, we still have a long way to go and cannot afford to lose the full use

of this important tool. Data shows persistent disparity in statewide patterns of toxic

use, with continued higher exposure for African Americans and Latinos as compared

to Anglos.

• We urge you to reinstate the strong TRI reporting requirements at the lowest

thresholds.

Mr. WYNN. Thank you, Mr. Bravo.

Mr. Bopp.

STATEMENT OF ANDREW BOPP, DIRECTOR, PUBLIC AFFAIRS,

SOCIETY OF GLASS AND CERAMIC DECORATORS, ALEXANDRIA, VA

Mr. BOPP. Thank you, Chairman, and thank the committee for

allowing me to testify today on EPA’s efforts to reduce the paperwork burden of TRI reporting on small business. My name is Andrew Bopp. I am the public affairs director of Society of Glass and

Ceramic Decorators. This group is made up primarily of companies

that custom-print mugs and glassware including very small family

businesses. And I noted that earlier people were referring to companies up to 500. I am talking of companies around 15 to 20 employees and then, well, I will get into this.

I have worked with SGCD members for 10 years now, including

business owners like Nancy Klinefelter, who is president of Baltimore Glassware Decorators. I have tried to help her as she grapples with the regulatory issues related to operating a business

where lead is a necessary part of the process. Nancy testified on

the TRI burden reduction before the Senate EPW Committee back

in January, and she was eager to be here today. Unfortunately, the

nature of a small business, she is at a trade show in Maryland. No

one else from her company could do it, so she couldn’t be here, so

I am basically speaking for her and others like her.

As with most regulations as has been pointed out before, the TRI

reporting burden creates far more problems for small business than

for large business. Companies like Nancy’s especially, and again,

we are talking 15, 20 employees, not the 500 threshold people referred to earlier. To give you an idea of the type of company I am

talking about, Baltimore Glass was started by Nancy’s brother

back in 1977, with the help of her father, who had worked in the

glass industry for more than 50 years. They employ 15 employees,

like I said before, including Nancy’s mother, who works in the office, her father, who acts as general manager, and her brothers

who work in sales and production. This is truly your family-type

business that we are talking about. They employ no engineers on

staff, certainly no environmental engineers, so the TRI burden, it

falls entirely on Nancy.
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Baltimore Glassware is not a unique company. It represents the

typical wholesale glass and ceramic decorator in this country. They

print small quantities of glass and ceramic ware, such as mugs as

Mr. Shimkus showed, for ad specialty, restaurants, souvenir-type

uses. When custom printing these mugs or glasses, companies may

use lead-bearing enamels on the outside surfaces to achieve the

color and mainly durability demanded by customers.

As a rule, unleaded enamels do not have the durability, gloss, or

color ranges the customers require. It is not a case of, oh, we are

just going to choose to pick this. It is a case of you either get the

order or you don’t, which means something in business.

These lead-free colors do not hold up well for abrasion of deterioration in dishwashers. It is very important to understand that the

leaded colors become a part of the glass after they are fired. Also,

due to the cost of these colors, Baltimore Glass and all the companies like them use what is needed and the rest goes back on the

shelf. These are not companies that are emitting as I will get to.

I am testifying today really in support of EPA’s recent burden reduction rule that allows companies such as Baltimore Glass to use

the TRI Form A instead of the more complicated Form R. To do so,

and this is the important thing, they must meet very strict eligibility requirements. It is really similar to using the 1040EZ instead

of the 1040, if you qualify. You are still reporting everything, but

you get to do it in a simpler way.

To qualify, that decorator, Nancy’s company or a company like

them, must use less than 500 pounds of lead in a year, and again,

that is use, not release, and the key is they must report zero release of lead onsite and offsite. They have to report nothing. So this

is not a case of losing information. This is a case of nothing. She

is able to do it on a simpler form. Essentially all of the information

that the neighbors need is what lead is released, like Congressman

Shimkus referred to earlier, the release. That is what counts.

Baltimore Glass does exceed the threshold of 100 pounds used in

a year to enter into the program, and they exceed the employee

threshold of 10 employees to get into the program, but barely, so

there they are. They are in the program with major companies

using the Form R.

I have spoken with Nancy every year as she has attempted to

complete the Form R properly, but every year she receives notices

from EPA that paperwork corrections are needed. These changes do

no reflect the failure to report color use or release. They just reflect

paperwork errors. For example, last year she received a 13-page

notice from EPA that informed her she had not identified lead compounds by their correct CAS number. This is a small businesswoman who is expected to look through these different forms that

engineers process to fill out a report. Using Form A streamlined

the process for Nancy since it was used for the 2006 report, and

she has to date not received any questions from EPA on her last

report.

Remember, again, small business. Time spent on completing paperwork is time that Nancy and others like her cannot spend on

doing things like supervising employees, working with customers,

and more importantly, looking for new business. Glass and ceramic

decorators face brutal competition like many manufacturers from
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Chinese decorators. The reality is that paperwork burdens add to

the cost of doing business by absorbing staff time. EPA estimated

in the final rule that companies would save 151⁄2 a year of staff

time if they qualified to use the Form R. That was brought up earlier, and that is 2 days worth of work for someone. That may not

mean much to a large company, but it means a lot, a real lot to

a small company. Nancy said this, she said this before the EPW

Committee.

SGCD and responsible small business owners like Nancy do believe that it is important to keep track of any releases that might

impact their neighborhoods where they live. She lives there. Or the

environment. That has not changed as a result of EPA’s new burden reduction rule. If a decorator like Nancy has a release, no matter how miniscule or even if it is managed offsite, they will be required to use Form R as in the past. One and you are back on

Form R.

If a company manages, like Nancy’s, its burden production process during the year to avoid any release, then you can use the

Form A. That acts as an incentive to eliminate release, and it definitely does. I talk to her every year she is doing the paperwork,

and it is confusing every year.

SGCD does commend EPA for listening to our concerns and making an effort to reduce the TRI paperwork burden without impacting the information that decorators provide to the public through

the TRI Program. I urge this committee to support such paperwork

burden reduction efforts which are critical to maintaining the competitiveness of business in this country, especially small business.

Thank you, again, for the opportunity to testify.

[The prepared statement of Mr. Bopp follows:]
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Mr. WYNN. Thank you, Mr. Bopp.

Mr. Finkelstein.

STATEMENT OF ALAN FINKELSTEIN, ASSISTANT FIRE MARSHAL, STRONGSVILLE FIRE AND EMERGENCY SERVICES,

TRENTON, NJ

Mr. FINKELSTEIN. Good afternoon. My name is Alan Finkelstein,

and I would like to thank Chairman Wynn and Mr. Shimkus and

the subcommittee members for permitting me to come in and give

testimony for this hearing. I would like to also thank Mr. Shimkus

for acknowledging my existence before. I appreciate the acknowledgement.

I am here today because I wanted to speak in support of the

Toxic Right-to-Know Protection Act, H.R. 1055. I want to make

some clarifications. I am not here on behalf of my fire department.

I am not here on behalf of the Cuyahoga County Local Emergency

Planning Committee or any other organization I am associated

with.

I also need to make some clarifications. Mr. Shimkus made a

statement before regarding the fact that first responders don’t

make use or wouldn’t make use of the TRI in their response, and

that is correct. I take credit for making that comment on a conference call that was last, made last winter, to which there were

several replies. It was not my intent for anybody to think that first

responders would make use of 313 rather than 311 and 312, which

are the extremely hazardous substances, and those are required to

be reported.

I have been in the fire service for 25 years, and for the last 15

years I have been involved with hazardous materials response in

planning as well our hazard emergency planning that goes on within my city and Cuyahoga County. I have done extensive work with

the Local Emergency Planning Committee and with the U.S. EPA

Region 5 as far as getting chemical reporting in and working with

facilities to help make them safer.

The toxic release inventory provides us with information that we

wouldn’t ordinarily have. There are some chemicals at facilities or

materials at facilities that aren’t covered under any other section

of EPCRA. A facility in my jurisdiction has copper and manganese

in inventory. They are not covered under any other section of

EPCRA. They don’t provide a hazard probably as far as release because generally they are not in particulate form, however, for the

workers they are a hazard and for responders they are a hazard

if they go into that building. We need to make sure that they have

the proper respiratory protection for themselves.

As the fire prevention officer for my city, I am responsible for the

facilities, protecting their workers and for staff in general.

There are a couple of things that I learned when I was in my

original fire school way back in the dinosaur age, and there are two

things that stood out for me were that life safety is always the first

priority for firefighters, and for the citizens at large. The second

thing is that pre-planning is important before an incident happens.

Toxic release inventory gives us information about facilities that

may not be available in other sections. It also helps us address
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things with the facility. If they have issues, we can help, also help

them out as far as their planning goes.

There are sections of the Clean Air Act, section 112(r), which is

the risk management plan, and also the Emergency Planning and

Community Right-to-Know Act which were created to help jurisdictions get the information they need for planning and response. It

was also created to help the citizens get information for the facilities in their jurisdictions and which they live around. Because of

concerns about homeland security, a lot of the things, a lot of the

information that was available is no longer available to citizens except on a case-by-case basis. It makes things difficult for them.

By increasing the reporting threshold from 500 to 5,000 pounds

for most facilities and enabling facilities to use the Form A, which

doesn’t provide any quantitative information about what is present

at the facilities, it basically just tells us that a facility is there. It

doesn’t give us any information. There have been some companies

that complained that the TRI reporting was overly burdensome and

that it was expensive. My contention is that the cost of not reporting it and having people get injured or killed is a lot more expensive.

Basically as far as the reporting goes, it is the responsibility of

business to make sure that they are safe. It may benefit the facility

because they have transparent operations. It lets the citizens know

that they are being open and correcting in what they have out

there, and our facilities tend to be thinking along those lines.

One of the side benefits resulting from toxic release inventory

and the risk management plan being out there is that facilities decrease their inventories and change their processes so that they

can minimize the amounts of chemicals they have on site at any

one time. We have facilities that are required to report 10,000

pounds of ammonia if they have it in inventory. They have decreased the size of their tanks down to 7,000 pounds. So they save

money by not having to file the reports in certain areas of EPCRA

and RMP, and they also save on product because they don’t need

to keep so much on hand.

The safety is also benefited by having those reductions made in

the amount that is present and also there are inherently safer

processes being used. For the small business people or the Small

Business Administration, I would also like to add that if facilities

need environmental contractors to come in and help them do their

paperwork, they are able to do so, and it helps the small businesses

out.

The last point I would like to make, I cut it a lot shorter. You

have the written ones. I wanted to keep it a little bit shorter, is

that the facilities are generally located in areas where there are

low-income people who have the most risk of health problems because they don’t have healthcare available to them, and they also

have the least political voice.

Thank you.

[The prepared statement of Mr. Finkelstein follows:]
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Mr. WYNN. Thank you very much, Mr. Finkelstein. We are going

to have to be a little tight, because as you can tell, there is a vote.

I want to get Ms. Wittenberg’s testimony in before we go to the

vote.

Ms. Wittenberg.

STATEMENT OF NANCY WITTENBERG, ASSISTANT COMMISSIONER, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL

PROTECTION, TRENTON, NJ

Ms. WITTENBERG. Thank you. I will keep it short. I optimistically

wrote good morning. Good afternoon now. I will learn my lesson.

My name is Nancy Wittenberg. I am the assistant commissioner of

environmental regulation for the New Jersey Department of Environmental Protection.

New Jersey has got a unique perspective on the TRI issue. We

have combined implementation of several laws in New Jersey, including our own Worker and Community Right-to-Know Law, our

own Pollution Prevention Act, and the Federal Emergency Planning and Community Right-to-Know Act. The burden reduction

didn’t impact New Jersey. We combined our forms into one form,

so regardless of what EPA did, facilities in New Jersey that would

be required to submit any form, be it A or R, to DEP have to submit to us a different form, which is called a Release and Pollution

Prevention Report.

It is much like the Form R, but maybe it is a little easier to do

because we have never had any complaints from small business. I

checked. I went online, I worked through the form myself. We have

pretty much simplified it down as best we could.

What we did sort of to make the point today was we looked back

over the data we have gotten over the years compared to what we

wouldn’t have gotten if we had been subject to the burden reduction in the State and just to throw out some of the numbers quickly

that we came up with is that we do a trends report, which is perhaps one of the best things we get out of our TRI data. And in my

submitted testimony is the link to get that. We would have missed

out on knowing about over a million pounds of cancer-causing compounds used in the State of New Jersey. That includes 21,000

pounds of waste arsenic. All of our arsenic data would be lost to

us if that reporting level changed. One hundred, twenty-two thousand, four hundred and sixty-five pounds of styrene, 175,000

pounds of chromium, 44 different carcinogen data would have been

lost to us completely. Six-thousand, seven hundred and seventythree pounds of production-related waste for PBTs over just the

last 4 years, 30 municipalities in New Jersey wouldn’t have had

any of their facilities report at all. So we would have lost a significant amount of data.

In terms of EJ, we looked at two urban areas in New Jersey: Linden and Camden. Just over the past 2 years if we had been subject

to burden reduction, in Camden four facilities would not have to report at all, and every facility in Camden is right next door to where

a lot of people live. In Linden six facilities would not have had to

report at all, and each of these facilities use PBTs including lead

as well as carcinogens. So that would be a significant loss to those

communities to know about the use of those substances.
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Clearly, New Jersey has seen the benefits of having this data,

and we went back and looked at what we wouldn’t have had should

this change impacted us. So we are very supportive. My testimony

has much more information. I am keeping it short.

Thanks.

[The prepared statement of Ms. Wittenberg follows:]
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Mr. WYNN. Thank you very much. Short but effective.

I want to thank all the witnesses. Unfortunately, we do have a

vote on. We have two votes, a 15-minute and a 5-minute, so I think

it is safe to say that we probably wouldn’t be back before, about

25 minutes if you want to take a break, get a sandwich, or something like that. We will be back, we will have questions following

that. Thank you.

The subcommittee stands in recess.

[Recess.]

Mr. WYNN. They will probably be drifting in. If someone sees

them, just let them know. In the meantime, I think what I would

like to do is go ahead and start. I know Mr. Bopp has another engagement. I just have a couple of quick questions that I will start

with.

The Chair recognizes himself for questions.

Mr. Bopp, I am sympathetic to small businesses, but I want to

cover a couple things. One, we are talking about electronic filing

for the most part I think.

Second, you mentioned lead a number of times. Does your client

deal with other chemicals in her processes, or is she primarily concerned about reporting on lead?

Mr. BOPP. It is really just lead.

Mr. WYNN. OK. So basically we have a situation of electronic filing with one chemical, and isn’t it true to phrase this other question, isn’t it true that basically once you, after the first year, your

basic data, name, address, location, type of chemical, all is pretty

much set. You just touch the button.

Mr. BOPP. Right.

Mr. WYNN. So is it reasonable to say that it is less burdensome

in subsequent years than it is in the first year?

Mr. BOPP. It would seem so. For her, though, and I wish she

were here because she could answer this a heck of a lot better than

me, but she still files the paper forms. So, again, this is someone

who actually complains frequently about being forced into the electronic forms. So she still does the paper forms. A lot of the time

that is spent is in tracking the lead use and the colors because

every color has a different percentage of lead.

So, and, again, from her experience, like I have said, every single

year she has gotten something back from EPA saying that something she has done is not correct. Again, there are no releases

there, but this is, again, a very small company. Obviously they are

computerized, who isn’t, but she is not very comfortable with working on the web, and again, I wish she were here, because she would

say exactly that, and she often really gets wound up over things

like that.

Mr. WYNN. Are there any other witnesses, do any other witnesses want to make a comment on the small business problem?

I think Ms. Wittenberg——

Ms. WITTENBERG. The only thing I would say is that from New

Jersey’s perspective and we have been doing this a long time, and

it is a State program, so we provide as much assistance as we can,

we have never had a complaint from small business about burden,

about cost. I checked every office we had to make sure that, over

the years, we have a small business assistance office.
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As I said, our forms are on-line, it is mandatory electronic. The

form is set up to be pretty user friendly, but it has not been an

issue for the small businesses in our State anyway to date to do

the reporting.

Mr. WYNN. Thank you. Mr. Shelton, I appreciate your testimony,

and I know you said there are instances, and I am aware of instances in which the environmental justice issue has really caused

hardship. I was wondering if you could help us put a human face

on this if you might relate one of the situations that the NAACP

has encountered.

Mr. SHELTON. Thank you very much. We visited the small town

of Gainesville, GA, very close to a rather large production facility.

If you walked into this local community, what you see is some very

pristine, working class homes on a street that slopes down to a

very, very nice public playground at the bottom of this very nice

and pristine community. Just past the playground you see a drainage ditch and just on the other side of that you see a rather large

facility.

That large facility has a number of smokestacks that pour out

toxins and so forth into the air. Interestingly enough, it was the facility that actually paid for that very, very nice playground and the

great part and the great area that we had a chance to visit.

We walked through the community and actually stopped by each

door on a one-block, both sides of the street, and stopped at each

house in which a member of the community actually had some

form of cancer. What we found as we moved through the streets

and put a black ribbon on the steps, on the railing of each of the

houses that actually got through stopping by many to visit to find

out in many cases that more than one member of the family actually has some kind of cancer. We stopped and visited one young

man, 30 years of age, living with his mother, his sister, and all

three had some type of cancer. Mother had a form of throat cancer,

he had a form of a lung cancer, his sister had a form of ovarian

cancer, but this seemed to go on on both sides of the street and

throughout this entire city block. As we got to the block after laying these black ribbons, we turned around and looked back, and

quite frankly, Mr. Chairman, we were stunned and shocked to see

that nearly every house on this street, 20 houses on each side of

the street, almost every house had a black ribbon in front of it. It

was shocking to see how pollutants like this actually destabilized

the entire families and for that matter entire communities.

Mr. WYNN. Thank you very much. That has been the observation

that many of us have been able to make in conversations in different parts of the country, and I appreciate you sharing that with

us.

At this time I am going to relinquish the balance of my time to

my ranking member, Mr. Shimkus.

Mr. SHIMKUS. Thank you, Mr.——

Mr. WYNN. Excuse me. I would like to relinquish my time and

recognize for a full 5 minutes. You didn’t see that coming. A full

5 minutes for questioning to Mr. Shimkus.

Mr. SHIMKUS. Thank you, Mr. Chairman.
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A lot of the statements that are made in the second panel talks

about the community not knowing, having information, the rightto-know. I don’t disagree with any of that.

If we could change the definition so that release really, so that

TRI isn’t toxic release, because we know as you heard in the, you

all sat in the first panel, that it really is toxic use, management,

and release inventory, no one here would have a problem with that,

would they?

Why don’t you just, Mr. Shelton?

Mr. SHELTON. It doesn’t matter to us what you call it.

Mr. SHIMKUS. Right.

Mr. SHELTON. The importance that——

Mr. SHIMKUS. Yes. I think there is a problem with what you call

it, because you by definition tell business and this form says you

are releasing toxics, where many times they are not. They may be

good stewards, so if we could just change the terminology and still

get the same information, you wouldn’t have a problem with that.

Mr. SHELTON. As long as all the data is collected at the same levels quite frankly. As a matter of fact, we would then begin to push

you further to collect even more data. Nonetheless, as long as the

data is collected don’t care a whole lot about what you call it as

long as you continue to collect that data.

Mr. SHIMKUS. OK. Mr. Bopp.

Mr. BOPP. No. I think that is a very good idea, because, again,

people look at that——

Mr. SHIMKUS. Mr. Finkelstein.

Mr. FINKELSTEIN. I concur. I think that that is the ideal way to

go.

Mr. SHIMKUS. Ms. Wittenberg.

Ms. WITTENBERG. Not a problem.

Mr. SHIMKUS. Not a problem. Great. Thank you.

I do have unanimous consent to have inserted into the record of

this hearing a letter supporting analysis submitted both, to both of

us and dated today from the Business Network for Environmental

Justice on H.R. 1103. I understand from staff that this information

was transmitted to your staff yesterday, and we were told at the

staff level that the majority would have no objection to its inclusion.

Ms. SOLIS [presiding]. Without objection.

Mr. SHIMKUS. Thank you.

Ms. SOLIS. It will be entered into the record.

Mr. SHIMKUS. And then Mr. Bopp, thanks for staying. I think it

is important.

Your fellow, and remember, those of us who really, and we are

trying to talk about small business. I have problems with that definition, what is it, 500, 250?

Mr. BOPP. Yes.

Mr. SHIMKUS. But most of us in rural America, small business

is small business. It is 30 employees or less. Small business creates

50 percent of all new jobs in America.

Mr. BOPP. Uh-huh.

Mr. SHIMKUS. Are those Mom and Pops that create new jobs. So

your testimony is important, and I appreciate you coming here, and

I appreciate you staying.
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Obviously, your fellow panelists has overwhelmingly questioned

the EPA’s TRI burden reduction proposal. They keep pointing to

overwhelming amount of comments against this rule. Why is this

burden reduction so important?

Mr. BOPP. Again, the thing I keep coming back to is for these

small businesses it is zero releasers who are getting reduction.

Companies in the glass and ceramic industry face real, real, real

tough competition from overseas. Every 2-day period, which is what

the savings would be that it saved, is valuable. It is helpful, and

again, to report nothing. If you are reporting something, our, to use

the case of Nancy once again, she lives in the neighborhood. She

is the last one who is going to want to have dumping in her neighborhood.

So to make it simpler for her, to save her time to just make

things better for business without losing any release information,

I don’t see how that is bad.

Mr. SHIMKUS. Would any of your members or other fellow small

businesses be except from reporting under the new rule?

Mr. BOPP. No. It is, you are either on the Form R or the Form

A. If you release anything at all, you are back on the Form R, and

one pound transmitted offsite, you are back on Form R.

Mr. SHIMKUS. Is the TRI, hopefully TUMRI, if we can change

that, is TRI the only environmental health or product safety rule

that you need to follow?

Mr. BOPP. Not at all. Starting with the final product FDA has

heavily regulated the use of metals on tableware for years. OSHA

rules take precedence for worker exposure possibly in these situations, various States have different rules. As you can imagine,

when there is lead in the consumer product, FDA has regulated

this tightly for 35 years. It is sort of, it is like leaded crystal. Lead

is there. It is, if there is no lead, there is no leaded crystal. That

doesn’t mean it is dangerous in that form.

So it is highly regulated already.

Mr. SHIMKUS. And are Nancy’s mugs and the paint on them regulated by anyone else or in any other way? Probably the same

question.

Mr. BOPP. Same question basically. Yes. Those agencies basically,

again, for products using lead, they are heavily, heavily, heavily

regulated.

Mr. SHIMKUS. And Dr. Bullard and Mr. Bravo, the question I

asked before you returned was if reporting is all the same, would

you be supportive of changing the TRI phrase to TUMRI, that is

my new lobbying, which would be the toxic use, management, and

release inventory?

The other panelists, I don’t want to sway you, they all said they

wouldn’t have a problem. I am—could be an amendment, so would

you have, if everything else stayed the same, we just changed, release, and added, use, management, and release.

Mr. BULLARD. Well, Congressman, I would not have a problem

with changing that as long as everything stayed the same.

Mr. SHIMKUS. OK.

Mr. BULLARD. We have lots of names for facilities and reporting

requirements like sanitary landfill.
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Mr. SHIMKUS. Yes. I just want to get clarify. I am just trying to

bring clarity here.

Mr. Bravo.

Mr. BRAVO. Yes. Likewise what Dr. Bullard is saying. I wouldn’t

have a problem with that, but there is something to be said about

names.

Mr. SHIMKUS. Yes. That is right. And I am just, I thank you. I

went over my time. Yield back.

Ms. SOLIS. OK. Then I guess I am the closing person here, but

I have a lot of questions.

Mr. Bopp, you mentioned that there is a burden that is shared

by small businesses, and you say in the application process and applying for this information.

What is the real cost, though, of compiling that information that

they have to by law do anyway? It doesn’t mean that they are

going to be left without having to do that, so can you give me an

idea of what that is, that they currently have to do anyway?

Mr. BOPP. Absolutely. Yes. Nancy, I believe she even said in the

EPW testimony back in February estimates without having formally done anything that about 130 hours go into calculating the

colors used during the year by all employees, because, again, if you

are decorating 20 different types of mugs a day with multiple colors, you have to track each color. Each color has a different amount

of lead, and so——

Ms. SOLIS. But she is still going to be required under law to do

that anyway.

Mr. BOPP. She still has to do that. Absolutely.

Ms. SOLIS. So, that is not really what we are talking about here.

We are talking about in this proposal by EPA is to reduce the information so all you are going to, all we are really talking about

is that one application and which to me sounds de minimus in

some sense.

Mr. BOPP. According to EPA it is 151⁄2 hours. So if Nancy were

here, and I will speak for her, that is 2 whole days when she could

be doing something else.

Ms. SOLIS. Right. And I understand that.

Mr. BOPP. So, and, again, it is, I think the key thing here is in

this case for lead to be on that simpler form she has to be reporting

zero release onsite and offsite. So I don’t see how being on a simpler form, that is the key thing we are reporting here.

Ms. SOLIS. Well, she also makes a choice by running her business

that contains that kind of contaminants. So those are choices that

business people make. So everyone in our society we usually agree

that everyone pays under the law.

Mr. BOPP. Oh, absolutely.

Ms. SOLIS. So that is what is happening here.

So, anyway, my other question is for Dr. Bullard. Thank you so

much for coming and Mr. Bravo and all the panelists obviously, but

I wanted to ask you with respect to the comment that was made

earlier by Ms. O’Neill, what you feel about the fact that just 1 percentage of less information is going to be made available.

What does that mean for communities of color and underrepresented areas?
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Mr. BULLARD. I think it is important to understand that 1 percent across the board may not seem like a large number for the

kinds of releases that we are talking about or the number of facilities, but if you are talking about communities that are already

overburdened, communities that already have more than their ‘‘fair

share’’ of types of emitting facilities, you are not talking about a

level playing field.

Ms. SOLIS. So maybe what you, I am trying to understand. So I

am looking in my own district where we have maybe in the city of

Industry, near my district, you have several different industry-run

organizations that have heavy, heavy concentrations of pollutants,

whether it is paint, whether it is battery acid and arsenic and what

have you. And if you are, you are taking some people off that list,

it doesn’t mean that it lessens the toxicity in the air or the water.

And I guess that is what I am trying to understand is, in your

opinion is that what would happen? We are not taking away the

facility. The facility is still going to be there.

Mr. BULLARD. Right. The facility will still be there. Again, when

you talk about one facility that may produce a small amount of pollution, it may, the toxicity level for that one facility may be such

that it creates a huge health problem, health threat in those communities that are already overburdened and saturated.

Ms. SOLIS. And so my concern, too, is that OMB asked EPA to

work towards a national figure instead of looking at the localities

that we have been hearing today from our witness from Mr. Chairman, and that is why I think when people somehow disregard the

importance of environmental justice, that we are trying to somehow

capture why it is important to have an equal playing field, because

so many times we are not looked at adequately. And I know that

is the case right now in my district. I have three Superfund sites,

and we have high levels of contaminants, perchlorate in our water,

which is another discussion that we have had before.

And we have, this is, there is no scientific evidence yet, but I

wish we could collaborate and have HHS here at another time to

collaborate the data for incidents of diseases as well as high asthma rates, high incidence of epilepsy, cancer, and what have you. In

an area where I grew up nearby a battery recycling plant where

acid, arsenic was produced and disposed of, our water has been

contaminated.

Thank goodness for local jurisdictions in our State of California

because we have Proposition 65, which requires notification. And

most people will read a flyer that you will get in the mail, but they

won’t even understand what that means, and it means to be aware

of, that there are some maybe ambient particular matter that is

there in the air. We have found neighborhoods adjacent to where

I live, where I grew up where there are cancer clusters; ovarian,

all kinds, uterine. All kinds of different types of cancers, and it is

rather alarming to me to know that this isn’t just going on in my

part of town, that it continues to happen.

My time is up.

Mr. Chairman, I yield back to you.

Mr. WYNN [presiding]. I want to thank the vice-chair for giving

me a little break there and particularly, again, for her leadership

throughout on this issue.
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If there are no other questions at this time, I believe that concludes our business with these witnesses. We have no further witnesses today. Thank you again for your patience and for your testimony.

I would like to remind Members that you may submit additional

questions for the record to be answered by the relevant witnesses.

The questions should be submitted to the committee clerk in the

electronic form within the next 10 days. The clerk will notify your

offices of procedures.

And without objection thank you, again, and the subcommittee

stands adjourned.

[Whereupon, at 2:10 p.m., the subcommittee was adjourned.]

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