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### Alternate Threshold for Low Annual Reportable Amounts; Toxic Chemical Release Reporting; Response to OMB Terms of Clearance Notice

OMB Control Number: 2070-0143, OMB Expiration Date: 01/31/2003

Background

On January 18, 2001, OMB approved EPA ICR 1704-05, OMB Control Number 2070-0143, for two years with terms related to burden reduction to be responded to at the time of submission of the ICR renewal. This submission constitutes EPA’s response to OMB’s terms of clearance for EPA ICR 1704-05, Alternate Threshold for Low Annual Reportable Amounts, and is being submitted to OMB as an attachment to its request for OMB approval of EPA ICR 1704-06, Alternate Threshold for Low Annual Reportable Amounts, due to expire on January 31, 2003.

For this ICR renewal (1704.06, OMB Control No. 2070-0143), EPA estimates that the total average annual burden hour estimate for the Form A Certification Statement is 13.7 hours for a facility submitting a single certification statement under the Emergency Planning and Community Right-to-Know Act (EPCRA) section 313. The estimate of total burden for reporting using the Form A Certification Statement is 145,534 burden hours. This year’s estimate represents a substantial reduction in burden, over 500,000, than what is currently in OMB’s inventory for alternate threshold reporting, 644,761 burden hours. As described in detail in Section 6 of the Supporting Statement for the EPA ICR 1704.06 renewal, this reduction in the burden estimate for the Form A Certification Statement is a result of adjustments to estimates of number of responses, changes to unit reporting burden estimates, and an adjustment for use of TRI-ME (TRI Made-Easy reporting software). TRI-ME is an intelligent reporting software program that is expected to significantly decrease the reporting burden by walking filers through the reporting process, eliminating much of the analysis required to make compliance determinations and calculate release quantities. Burden reduction with TRI-ME is estimated to be 15-20% for all TRI reporters.

Use and Potential Use of the Form A Certification Statement

Tables 1 through 4 present information on Form A Certification Statement usage over time and in reporting year 2000. Table 1 presents facilities’ usage of the Form A Certification Statement from reporting year 1995, the first year that alternate threshold reporting was in effect, to 2000, the last reporting year for which data have been submitted. Form A Certification Statement usage increased somewhat from 1995 to 1997, and has remained relatively constant since 1997.2 Table 1: Actual Form A Usage Over Time

1995 1996 1997 1998 1999 2000

Percent of All Forms 8.8% 10.2% 14.6% 15.5% 15.1% 14.4%

Percent of All Facilities 14.0% 15.9% 23.3% 24.1% 23.6% 23.2% Note: As of 2000, PBT chemicals with lower thresholds could not be reported on Form A. Excluding reports on PBT chemicals, Form As comprised 15.6% of all forms in 2000.

Table 2 describes current utilization of the Form A Certification Statement. Expanding Form A Certification Statement eligibility by raising established thresholds seems premature given that the Form A Certification Statement is underutilized by reporting facilities at current threshold levels. Table 3 describes actual and potential Form A Certification Statement reporting in terms of the number of chemicals affected. Table 4 describes Form A Certification Statement usage at the facility level.

Table 2: Reporting Year 2000 Use and Potential Use of the Form A Certification Statement

Number of Chemicals Reported on Form A Percent of Total Forms Number of Facilities Percent of All Facilities

Submitted 13,209 14.4 5,451 23.2
Submitted plus Potential Form As 23,976 26.2 10,736 45.7

Notes: 1. "Number of Facilities" refers to the number of facilities that submitted at least 1 Form A Certification Statement. 2. "Potential Form As" are Form Rs that have a total of current year section 8.1 through 8.7 of 500 lbs. or less.

Table 3: Number of Chemicals Affected Number of chemicals eligible for 100% Form A conversion Total number of chemicals reported on Form A

Actual 24 32

Potential 50 72

Table 4: Information Affected at the Facility Level Facilities submitting at least 1 Form A Certification Statement Facilities Submitting Only Form A Certification Statements (no Form R reports)

Actual 5,451 2,942

Potential 10,736 4,6773 In addition to emphasizing its availability during TRI training sessions, EPA has considered at length several other options for reducing burden in TRI reporting using the Form A Certification Statement. Each option considered and its feasability are discussed below.

Alternate year reporting

This option assumes that EPA would modify the TRI reporting frequency to a two year reporting cycle (i.e., facilities would only report TRI data every other year). Although biennial reporting appears on the surface to provide a significant avenue for reducing burden for TRI reporters, statutory findings and the process required to achieve the modification do not support it. First, to meet statutory requirements on modifying the reporting frequency, EPA must first notify Congress and then wait to initiate the rulemaking to propose the modification for at least 12 months. In addition, EPA must find:

(A) ...that the modification is consistent with the provisions of subs ection (h) of [section 313] based on - (i) experience from previously submitted toxic chemical release forms, (ii) determinations made under paragraph (3).]

Paragraph (3), in turn, provides that EPA must determine

(A) The extent to which information relating to the proposed modification provided on the toxic chemical release forms has been used by the Administrator or other agencies of the Federal government, States, local governments, health professionals and the public.

(B) The extent to which information is (i) readily available to potential users from other sources, such as State reporting programs, and (ii) provided to the Administrator under another Federal law or through as State program.

(C) The extent to which the modification would impose additional and unreasonable burdens on facilities subject to the reporting requirements under this section.

EPA is concerned about the availability of information that would allow the Agency to make the requisite findings under paragraph 3(B); for example, EPA has received only 1 year of data from facilities reporting at the lower lead thresholds, and the Agency believes that information reported annually to the TRI program is not "readily available" from any existing source. In addition, other EPA and State databases simply cannot substitute for the multimedia data that is reported under EPCRA Section 313 or the Pollution Prevention Act of 1990 (PPA). The other existing EPA databases encompass much more limited chemical information and do not substitute for TRI data in terms of frequency of reporting, and the ease of use and access that the TRI program provides to the public. In addition, the potential burden reduction of this option would be limited by the need for facilities to re-familiarize themselves with reporting procedures in alternate years. Although re-familiarization would probably be somewhat less burdensome than first-year4 reporting, this would substantially reduce potential burden reduction. Finally, EPA requested comment on a similar option during the PBT rulemaking. See, 64 Fed. Reg. 688, 718-719 (January 5, 1999). The majority of commenters expressed concern that such an option would introduce confusion for the regulated community and data users and would not significantly reduce burden. Further, they expressed concern that it could discourage facilities from establishing common standard procedures for data collection. Commenters also expressed concern that it would result in data gaps, undermining data consistency and tracking. Many commenters believed that time-series reporting is a fundamental attribute of TRI.

Streamlined certification of "no sign ificant change" in alternate years.

This option would allow facilities to certify that their releases and other waste management quantities reported for the current reporting year have not changed significantly from the previous reporting year.

This option would not represent a significant burden reduction because fac ilities must first calculate their releases and other waste management quantities in order to determine that they have not significantly changed. In addition, EPA would need to determine whether this option is equivalent to a modification in reporting frequency and how such arguments would be addressed (see discussion in Alternate year reporting section above). It would also need to be decided whether this option essentially grants a de minimi s exemption in total quantities, and, if so, whether total quantity can be justified under the plain language of the statute and whether other regulatory exemptions need to be modified to take this into account.

Expanding Form A Certification Statement Eligibility

Under EPCRA section 313(f)(2), EPA may revise thresholds only to the extent that the revised threshold obtains reporting on a substantial majority of total releases of the chemical at all facilities subject to EPCRA section 313. For purposes of determining what constitutes a "substantial majority of total releases," EPA interprets the language in section 313(f)(2), "fac ilities subject to the requirements of [section 313]," to refer to those fac ilities that fall within the category of facilities described by sections 313(a) and (b)

B i.e., the facilities currently reporting. Subsection (a) lays out the general requirement that "the owner or operator of facilities subject to the requirements of this section shall" file a report under EPCRA section 313. Subsection (b) then defines the facilities subject to the requirements of this section:

[t]he requirements of this section shall apply to owners and operators of facilities that have 10 or more full-time employees and that are in Standard Industrial Classification Codes 20-39,... and that manufactured, processed, or otherwise used a toxic chemical listed under subsection (c) of this section in excess of the quantity of that toxic chemical established under subsection (f) of this section during the calendar year for which a toxic chemical release form is required under this section.5 Thus, in revising the reporting thresholds, EPA must ensure that under the new thresholds a substantial majority of releases currently being reported will continue to be reported. The Agency has no information, at this stage, to indicate that it will be able to meet this standard were it to increase the Form A thresholds.

Further, it is important for the public to know detailed information about even small quantities of toxic chemicals in waste from facilities that handle high volumes of listed toxic chemicals. Efficient toxic chemical management practices of these facilities provide an example to other facilities of these practices. Also, if such facilities continue to be required to use the Form R, the chances of facilities that manage large volumes of listed toxic chemicals inappropriately would be reduced.

Exclude Recycling and Energy Recovery Quantities and Increase the Level of the Production-Related Waste Threshold from the Current 500 lbs. to 1000, 2000, or 5000 lbs.

If certain waste management practices are excluded from the waste threshold calculation, greater amounts of toxic chemicals in waste will no longer be reported, and members of the public who use TRI information to identify opportunitie s for increasing such beneficial uses, as well as initiatives that support reduction measures, could lose valuable information about what fac ilities are doing in these areas and how much material is still being managed as waste.

In addition, Section 6607 of the Pollution Prevention Act of 1990 (PPA) specifically requires facilities that must comply with section 313 of EPCRA to provide source reduction and recycling data. PPA section 6607(b)(2) requires reporting of "[t]he amount of the chemical from the facility which is recycled (at the facility or elsewhere) during such calendar year, the percentage change from the previous year, and the process of recycling used." Congress passed the PPA to collect additional data as a means to measure industry’s progress in reducing waste. Section 6602(a)(4) of the PPA states that "Source reduction is fundamentally different and more desirable than waste management and pollution control. The Environmental Protection Agency needs to address the historical lack of attention to source reduction." Excluding volumes associated with waste management activities such as recycling and energy recovery from the waste threshold calculation may undermine source reduction and conflict with national policy established by the PPA.

In 1998, the National Environmental Trust (NET), examined a proposal from the National Advisory Council for Environmental Policy and Technology (NACEPT) Toxics Data Reporting (TDR) Committee to increase the annual reportable waste amount criterion from 500 pounds to 5,000 pounds. The TDR Co mmittee thought that the loss of TRI data would be too great, and did not support making any changes to the current level of the waste criterion. The co mmittee supported attempts to encourage more complete use of the Form A under current eligib ility requirements.6 The next two tables, Table 5 and 6, present impacts from changing the basis of the threshold determination and increasing the levels of the production-related waste reportable amount. These analyses are based on data received for TRI reporting year 2000. Table 5 presents the estimated impacts in terms of data lost compared to cost savings under different scenarios when the production-related waste reportable amount is increased from the current level of 500 lbs. to 1,000, 2,000 and 5,000 lbs. The first scenario presented is an increase in the current level of production-related waste to 1,000, 2,000 and 5,000 lbs. using Form R items 8.1 through 8.7 (the current basis for the reportable amount determination. The second scenario presented changes the categories of toxic chemical in waste included in the waste reportable amount calculation (excludes quantities recycled and quantities used for energy recovery - items 8.2 through 8.5 from the waste reportable amount calculation).

Table 6 presents the estimated potential impacts on reporting facilities from the same options presented in Table 5.7Table 5: Estimated Impacts of Various Options (based on 2000 data)(1) (2) (3) Chemicals on Form A Only (4) (5)Option Level (lbs)ProductionRelatedWaste(8.1.thru 8.7)Pounds notreported onForm RReleases (8.1+ 8.8)Pounds notreported onForm RReductioninNumber ofForm Rs No. ofChemicalsNo. ofForm RsQuantity(8.1-8.7)Annual $CostSavings(million)Current Basis(8.1 thru 8.7)500-Full Use 1,330,741 2,389,233 10,767 50 72 4,639 $2.61000 3,875,826 4,081,703 14,251 56 87 9,211 $3.52000 9,552,002 7,422,484 18,137 64 108 28,790 $4.45000 28,568,903 17,414,133 23,873 77 161 89,302 $5.8No Recycling orEnergy Recovery(8.1 + 8.6 + 8.7)500 1,435,168,715 5,473,561 20,368 55 81 185,370 $5.01000 1,847,956,425 8,576,614 24,748 64 111 439,094 $6.12000 2,249,751,138 13,693,001 29,179 71 141 468,080 $7.15000 3,284,827,530 28,164,572 34,936 84 213 6,429,245 $8.6Notes:1. Total Production-Related Waste (sum 8.1 through 8.7) for reporting year 2000 is 37,814,548,752 pounds(PBTs were excluded from this total).2. Total "Releases" including releases from non-production related activities (sum 8.1 plus 8.8) for reporting year 2000 is 7,186,787,140(PBTs were excluded from this total)3. Total forms received for reporting year2000 was 91,513. Total forms minus PBT reporting was 84,612.4. Chemicals for which all submissions may be limited to FormAs (total listed toxic chemicals are approximately 650,total chemicalsreported in 2000 was 511.5. Based on an average cost of $841 per Form R and $596 per Form A. This includes calculations, report completion, recordkeepingand submission.8 Table 6: Estimated Impacts of Various Option s on Reporting Facilities (based on 2000 data) Scenario Level (lbs) Number of Form Rs Lost Number of Facilities Potentially Affected

At least 1 Form A Percent of total Facilities All Reports on Form A (No Form R) Percent of Total Facilities Current Basis (8.1 thru 8.7) 500- full use 10,767 10,736 45.7 4,677 19.9 1000 14,251 12,124 51.6 5,276 22.5

2000 18,137 13,438 57.2 6,024 25.7

5000 23,873 15,312 65.2 7,360 31.3

No Recycling

or Energy Recovery (8.1+8.6+8.7) 500 20,368 14,795 63.0 7,262 30.9

1000 24,748 16,178 68.9 8,175 34.8

2000 29,179 17,345 73.9 9,165 39.0

5000 34,936 18,794 80.0 10,670 45.4

Adjusting Activity Threshold Amounts for the Form A Certification Statement

EPA established the threshold amounts for the Form A Certification Statement in the Alternate Threshold Final Rule of November 30, 1994. The current "alternate threshold" is 1 million pounds of the chemical that is manufactured, processed or otherwise used at the facility. A facility that does not ex ceed 500 pounds of total production-related waste for a given listed toxic chemical may apply the alternate threshold of 1 million pounds to that listed toxic chemical. At the time of the alternate threshold final rule, the 1 million pound threshold was selected by EPA because it was determined that the 1 million pound threshold would exclude few facilities that met the 500 pound total production-related waste criterion. The following statements taken from that final rule support the establishment of the alternate threshold for manufacture, process and otherwise use of one million pounds and annual reportable amounts of five hundred pounds:

"Through this rule, EPA’s intent was to provide a reporting modification that delivers some degree of regulatory relief while continuing to capture relevant data. The 1 million pound alternate threshold represents an attempt to balance these two concerns."

"EPA has established the alternate threshold for manufacture, process and otherwise use of 1 million pounds in order to provide those facilities with annual reportable amounts not exceeding 500 pounds per chemical with a lower burden reporting option, while preserving more detailed data for facilities that manufacture, process, or otherwise use larger volumes of chemicals. A 1 million pound alternate threshold for amounts manufactured or processed, with9 annual reportable amounts not exceeding 500 pounds, represents an efficiency of 99.95 percent and EPA believes this level is likely to include the vast majority of facilities meeting the category. EPA also believes that establishing the alternate threshold at 1 million pounds is an effective means to retain more detailed information where exceedingly large volumes of toxic chemicals are managed."

Although raising the alternate threshold would increase the number of facilities that use Form A Certification Statement, thereby reducing their recordkeeping and reporting requirements, EPA believes it is unlikely that a significant proportion of facilities are currently prevented from using the Form A Certification Statement for this reason. Also, under EPCRA section 313(f)(2), EPA may revise thresholds only to the extent that the revised threshold obtains reporting on a substantial majority of total releases of the chemical at all facilities subject to EPCRA section 313.

It is important for the public to know detailed information about even small waste quantities from facilities that handle such high volumes of listed toxic chemicals. Efficient toxic chemical management practices of these facilities could provide an example to other facilities of these practices. Also, if such facilities continue to be required to use the Form R, the chances of facilities that manage large volumes of listed toxic chemical inappropriately using the Form A Certification Statement would be reduced.

Conclusions

If the Form A Certification Statement was fully utilized, an additional annual cost savings of $2.6 million could be realized. However, increasing the production-related waste quantity or excluding certain production-waste categories would lead to significant losses of data in terms of releases and production-related waste that would not be reported. EPA does not believe that the additional cost savings justify these losses in data to the public. Further, by increasing the production-related waste criterion or by excluding certain types of waste management quantities, EPA does not believe it can meet the requirements of EPCRA section 313(f)(2). EPA believes that TRI-ME and other methods that reduce reporting burden without eliminating data are approaches that deserve further investigation and investment. Over the period of the ICR renewal, TRI-ME is anticipated to reduce the burden of Form R and Form A reporting by approximately $12 million and 283,631 hours. This reduction in burden and cost is much more substantial than that offered by expanding eligibility for Form A, and does not lead to additional loss of data.