Environmental Right-To-Know: EPA's Recent Rule Could Reduce Availability of Toxic Chemical Information Used to Assess Environmental Justice
Published: 2007-10-04T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: A 1994 Executive Order sought to ensure that minority and low-income populations are not subjected to disproportionately high and adverse health or environ-mental effects from agency activities. In a July 2005 report, GAO made several recommendations to improve the Environmental Protection Agency's (EPA) adherence to these environmental justice principles. The Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) requires certain facilities that use toxic chemicals to report their releases to EPA, which makes the information available in the Toxics Release Inventory (TRI). Since 1995, facilities may submit a brief statement (Form A) in lieu of the more detailed Form R if releases of a chemical do not exceed 500 pounds a year. In January 2007, EPA finalized the TRI Burden Reduction Rule, quadrupling to 2,000 pounds what facilities can release before having to disclose details using Form R. Congress is considering codifying the Executive Order and requiring EPA to implement GAO's environ-mental justice recommendations. Other legislation would amend EPCRA to, among other things, revert the Form A threshold to 500 pounds or less. In this testimony, GAO discusses (1) EPA's response to GAO's environmental justice recommendations, (2) the extent to which EPA followed internal guidelines when developing the TRI rule and (3) the impact of the rule on communities and facilities.
section_title: What GAO Found
paragraphs: EPA initially disagreed with GAO's July 2005 environmental justice recommendations, saying it was already paying appropriate attention to the issue. GAO called on EPA to improve the way it addresses environmental justice in its economic reviews and to better explain its rationale by providing data to support the agency's decisions. A year later, EPA responded more positively to the recommendations and committed to a number of actions. However, based on information that EPA has subsequently provided, GAO concluded in a July 2007 testimony that EPA's actions to date were incomplete and that measurable benchmarks were needed to hold agency officials accountable for achieving environmental justice goals. In developing the TRI rule, EPA did not follow key aspects of its internal guidelines, including some related to environmental justice. EPA did not follow guidelines to ensure that scientific, economic, and policy issues are addressed at appropriate stages of rule development. For example, EPA asserted that the rule would not have environmental justice impacts; however, it did not support this assertion with adequate analysis. The omission is significant because many TRI facilities that no longer have to submit Form R reports are located in minority and low-income communities; and the reduction in toxic chemical information could disproportionately affect them. EPA's TRI rule will reduce the amount of information about toxic chemical releases without providing significant savings to facilities. A total of nearly 22,200 Form R reports from some 3,500 facilities are eligible to convert to Form A under the rule. While EPA says the aggregate impact of these conversions will be minimal, the effect on individual states and communities may be significant, as illustrated below. Although making significantly less information available to communities, GAO estimated that the rule would save companies little--an average of less than $900 per facility.

section_title: Letter
paragraphs: I am pleased to be here today to discuss our work on two related issues.  The first issue is the Environmental Protection Agency’s (EPA)  consideration of environmental justice in the development of new rules.  Environmental justice generally refers to efforts to identify and address  the disproportionately high and adverse human health and environmental  impacts that air pollution and other environmental risks pose to specific  populations––usually minority and low-income communities. The second  issue is EPA’s Toxic Release Inventory (TRI) Burden Reduction rule,  which recently changed how much information some facilities are  required to report to the public about their use and release of certain toxic  chemicals. A key use of the TRI is for environmental justice purposes, and  EPA used that rule as an example of how the agency has improved  consideration of environmental justice issues in its rule development  process. Specifically, information about toxic chemical use, transport,  storage, and release captured in the TRI has been useful for determining  whether minority and low-income populations bear disproportionately  high and adverse human health or environmental effects of EPA programs,  policies, and activities. Hence, while a change to TRI reporting  requirements may not affect how much toxic waste is released to the  environment, it could affect how much information communities will  know about those toxic releases.
In 1994, President Clinton issued Executive Order 12898, which stated that  EPA and other federal agencies, to the greatest extent practicable and  permitted by law, shall make achieving environmental justice part of their  missions by identifying and addressing, as appropriate, the  disproportionately high and adverse human health or environmental  effects of their programs, policies, and activities on minority populations  and low-income populations in the United States. To implement the order,  EPA developed guidance for incorporating environmental justice into its  programs, such as the enforcement of the Clean Air Act, which is intended  in part, to control emissions that harm human health. A key to ensuring  that environmental justice is sufficiently accounted for in agency decisions  and operations is that it be considered at each point in the rule  development process—including the point when agency workgroups  typically consider regulatory options, perform economic analyses of  proposed rules’ costs, make proposed rules available for public comment,  and finalize them before implementation.
Congress passed the Emergency Planning and Community Right-to-Know  Act of 1986 (EPCRA) to help inform citizens about releases of toxic  chemicals to the environment; to help governmental agencies, researchers,  and others conduct research and gather data; and to aid in the  development of appropriate regulations, guidelines, and standards. Section  313 of EPCRA generally requires certain facilities that manufacture,  process, or otherwise handle specified amounts of any of 581 individual  chemicals and 30 additional chemical categories to annually report the  amount of those chemicals that they released to the environment,  including whether those chemicals were released to the air, soil, or water.  Facilities comply with TRI reporting requirements by submitting to EPA  and their respective state information for each TRI-listed chemical that  they use in excess of certain thresholds using a Form R report. Since 1995,  EPA has allowed certain facilities to submit information on a brief Form A  certification statement (Form A) in lieu of the detailed Form R report if  they release or manage no more than 500 pounds of a chemical that is not  persistent, bioaccumulative, and toxic (non-PBT) during the year. While  both Form R and Form A capture information about a facility’s identity,  such as mailing address and parent company, and information about a  chemical’s identity, such as its generic name, only Form R captures  detailed information about the chemical, such as quantity disposed or  released onsite to air, water, and land or injected underground, or  transferred for disposal or release off-site. Form R also provides  information about the facility’s efforts to reduce pollution at its source,  including the quantities of waste it manages both on- and off-site, and how  it manages waste, such as amounts recycled, burned for energy recovery,  or treated. We provide a detailed comparison of the TRI data on Form R  and Form A in Appendix I.
On December 22, 2006, EPA issued the TRI Burden Reduction rule, which  sought to reduce industry’s reporting burden by: (1) quadrupling the Form  A threshold from 500 to 2,000 pounds of releases for a non-PBT chemical,  and (2) allowing certain facilities to use Form A for non-dioxin, persistent  bioaccumulative toxic (PBT) chemicals, such as lead and mercury,  provided that they release none of the PBT chemical to the environment.  The rule went into effect for reporting calendar year 2006 releases, which  were due by July 1, 2007. Because EPA typically releases TRI data to the  public in the spring following the due date, the most currently available  data are for calendar year 2005; the 2006 data are expected in spring of  2008.
The Congress is considering legislation to codify Executive Order 12898,  relating to environmental justice, to require the Administrator of the  Environmental Protection Agency (EPA) to fully implement the  recommendations that GAO made in 2005. Additional legislation has been  introduced that would, among other things, effectively repeal EPA’s TRI  Burden Reduction Rule. Specifically, the bills would amend EPCRA to (1)  require the Administrator of EPA to establish the eligibility threshold for  use of Form A at not greater than 500 pounds for non-PBT chemicals, (2)  prohibit use of Form A for PBT chemicals, and (3) repeal a provision of  EPCRA allowing the Administrator of EPA to modify the frequency of  toxic chemical release reporting.
My testimony this morning is based, in part, on a July 2007 update to our  2005 report on environmental justice, which recommended that EPA  devote more attention to environmental justice when developing clean air  rules. Our 2005 report examined how EPA considered environmental  justice during the drafting of three air rules and concluded that the manner  in which EPA had incorporated environmental justice into its air  rulemaking process fell short of the goals set forth in Executive Order  12898. In that report, we recommended four actions to help EPA resolve  the problems we identified. Specifically, we called on:  1.  EPA’s rulemaking workgroups to devote attention to environmental  justice while drafting and finalizing clean air rules;  2.  the EPA Administrator to enhance workgroups’ ability to identify  potential environmental justice issues by (1) providing workgroup  members with guidance and training to help them identify potential  environmental justice problems and (2) involving environmental  justice coordinators in the workgroups when appropriate;  3.  the EPA Administrator improve assessments of potential  environmental justice impacts in economic reviews by identifying the  data and developing the modeling techniques needed to assess such  impacts; and  4. the EPA Administrator to direct cognizant officials to respond more  fully to public comments on environmental justice by, for example,  better explaining the rationale for EPA’s beliefs and by providing  supporting data.
My testimony also draws on our February 2007 testimony, in which we  discussed our then-ongoing work on EPA’s TRI program. We expect to  publish the final results of our evaluation later this month. My statement  today provides: (1) EPA’s responses to the recommendations we made to  EPA to address the environmental justice problems we identified in 2005,  (2) our assessment of the extent to which EPA followed internal rule  development guidelines when developing its TRI Burden Reduction Rule,  including its implications for environmental justice, and (3) estimates of  the impact of the TRI Burden Reduction Rule on communities and  facilities.
In commenting on the draft of our July 2005 environmental justice report,  EPA initially disagreed with our recommendations, saying it was already  paying appropriate attention to environmental justice. A year later, in a  letter to the Comptroller General, EPA responded more positively to our  recommendations and committed to taking a number of actions to address  them. However, based on information that EPA has subsequently provided  regarding the recommendations we made in that report, we concluded in  our July 2007 testimony that EPA’s actions to date suggest the need for  measurable benchmarks to achieve environmental justice goals and to  hold agency officials accountable for making meaningful progress.
As I discussed in our February 2007 testimony, we found that EPA did not  follow key aspects of its internal guidelines––including some related to  environmental justice––in developing the TRI Burden Reduction Rule. We  found that EPA’s deviations from its guidelines were due, in part, to  pressure from the Office of Management and Budget to significantly  reduce industry’s TRI reporting burden by the end of December 2006.  Throughout this process, senior EPA management has the authority to  depart from the guidelines. Nevertheless, we have identified several  significant differences between the guidelines and the process EPA  followed for this case, which was widely criticized by the public, including  attorneys general from 12 states. Specifically, EPA did not follow key steps  in its guidelines intended to ensure that scientific, economic, and policy  issues were adequately addressed at the appropriate stages of  development and to ensure cross-agency participation until the final action  is completed. For example, the draft rule and supporting analyses are to  be circulated for final agency review, a key step when EPA’s internal and  regional offices should have discussed with senior management whether  they concurred with the rule. However, their input was limited at this stage  because the review package addressed the “no significant change” option  rather than the increased Form A threshold option that was subsequently  included in the proposed rule and ultimately finalized. With regard to  environmental justice, EPA asserted that the TRI rule would not have  environmental justice impacts; however, the agency did not explain a key  assumption it used in arriving at this conclusion. This is particularly  significant because, according to EPA data that we examined, facilities  that report to the TRI are more likely to be located near minority and low- income communities. Therefore any reduction in the availability of TRI  data seems likely to disproportionately affect them.
EPA’s TRI Burden Reduction Rule will reduce the amount of information  about toxic chemical releases previously available to the public. EPA  asserted that the final rule would not result in the loss of critical  information and would significantly reduce industry’s reporting burden.  With regard to EPA’s assertion that critical information would not be lost,  the agency estimated that less than 1 percent of the total pounds of  chemical releases would no longer be reported to the TRI. 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. We estimated that a total of nearly 22,200 Form R reports are eligible  to convert to Form A under the revised TRI reporting thresholds, ranging  from 25 in Vermont to 2,196 in Texas. The number of chemicals for which  only Form A information may be reported under the TRI rule ranges from  3 chemicals in South Dakota to 60 chemicals in Georgia. Taken by facility,  some 3,500 facilities would no longer have to report any quantitative  information about their chemical use and releases to the TRI, ranging from  5 in Alaska to 302 in California. With regard to EPA’s assertion that the  final rule will result in significant reduction in industry’s reporting burden,  EPA estimated that the rule would save $5.9 million at most, which we  calculated would amount to savings of less than $900 per facility.
subsections: section_title: EPA’s Response to Our Environmental Justice Recommendations Suggests a Need for Clear Benchmarks to Measure Progress
paragraphs: As we testified in July 2007, EPA’s actions in response to our previous  recommendations suggest the need for measurable benchmarks—both to  serve as goals to strive for in achieving environmental justice in its  rulemaking process, and to hold cognizant officials accountable for  making meaningful progress. In commenting on our draft 2005 report, EPA  disagreed with the four recommendations we made, saying it was already  paying appropriate attention to environmental justice. A year later, in its  August 24, 2006 letter to the Comptroller General, EPA responded more  positively to our recommendations and committed to taking a number of  actions to address these issues. Specifically, EPA’s letter stated:  In response to our first recommendation, calling upon EPA’s rulemaking  workgroups to devote attention to environmental justice while drafting  and finalizing clean air rules, EPA responded that, to ensure consideration  of environmental justice in the development of regulations, its Office of  Environmental Justice was made an ex officio member of the agency’s  Regulatory Steering Committee, the body that oversees regulatory policy  for EPA and the development of its rules. EPA also said that (1) the  agency’s Office of Policy, Economics and Innovation (responsible in part  for providing support and guidance to EPA’s program offices and regions  as they develop their regulations) had convened an agency-wide  workgroup to consider where environmental justice might be considered  in rulemakings and (2) it was developing “template language” to help rule  writers communicate findings regarding environmental justice in the  preamble of rules. In addition, EPA officials emphasized that its Tiering  Form––a key form completed by workgroup chairs to alert senior  managers to the potential issues related to compliance with statutes,  executive orders, and other matters––would be revised to include a  question on environmental justice.
In response to our second recommendation, calling on EPA to provide  workgroup members with guidance and training to help them identify  potential environmental justice problems and involve environmental  justice coordinators in the workgroups when appropriate, EPA said it was  creating a comprehensive curriculum to meet the needs of agency rule  writers. Specifically, EPA explained that its Office of Policy, Economics,  and Innovation was focusing on how best to train agency staff to consider  environmental justice during the regulation development process and that  its Office of Air and Radiation had already developed environmental  justice training tailored to the specific needs of that office. Among other  training opportunities highlighted in the letter was a new on-line course  offered by its Office of Environmental Justice to address a broad range of  environmental justice issues. EPA also cited an initiative by the Office of  Air and Radiation’s Office of Air Quality Planning and Standards to use a  regulatory development checklist to ensure that potential environmental  justice issues and concerns are considered and addressed at each stage of  the rulemaking process. In response to our call for greater involvement of  Environmental Justice coordinators in workgroup activities, EPA said that  as an ex officio member of the Regulatory Steering Committee, the Office  of Environmental Justice would keep the program office environmental  justice coordinators informed about new and ongoing rulemakings with  potential environmental justice implications via monthly conference calls  with the environmental justice coordinators.
In response to our third recommendation, calling on the EPA  Administrator to identify the data and develop the modeling techniques  needed to assess potential environmental justice impacts in economic  reviews, EPA responded that its Office of Air and Radiation was reviewing  information in its air models to assess which demographic data could be  analyzed to predict possible environmental justice effects. EPA also stated  it was considering additional guidance to address methodological issues  typically encountered when examining a proposed rule’s impacts on  subpopulations highlighted in the executive order. Specifically, EPA  discussed creating a handbook that would discuss important  methodological issues and suggest ways to properly screen and conduct  more thorough environmental justice analyses. Finally, it noted that the  Office of Air and Radiation was assessing models and tools to (1)  determine the data required to identify communities of concern, (2)  quantify environmental health, social and economic impacts on these  communities, and (3) determine whether these impacts are  disproportionately high and adverse.
In response to our fourth recommendation, calling on the EPA  Administrator to direct cognizant officials to respond more fully to public  comments on environmental justice by, for example, better explaining the  rationale for EPA’s beliefs and by providing supporting data, EPA said that  as a matter of policy, the agency includes a response to comments in the  preamble of a final rule or in a separate “Response to Comments”  document in the public docket for its rulemakings. The agency noted,  however, that it will re-emphasize the need to respond to comments fully,  to include the rationale for its regulatory approach, and to better describe  its supporting data.
However, more recent information from agency officials indicates that  EPA’s handling of environmental justice issues continues to fall short of  our recommendations and the goals set forth in Executive Order 12898. In  July 2007, we met with EPA officials to obtain current information on  EPA’s environmental justice activities, focusing in particular on those  most relevant to our report’s recommendations. Specifically:    Regarding our first recommendation that workgroups consider  environmental justice while drafting and finalizing regulations, the Office  of Environmental Justice has not participated directly in any of the 103 air  rules that have been proposed or finalized since EPA’s August 2006 letter.  According to EPA officials, the Office of Environmental Justice did  participate in one workgroup of the Office of Solid Waste and Emergency  Response, and provided comments on the final agency review for the  Toxic Release Inventory Reporting Burden Reduction Rule. In addition,  EPA explained that the inclusion of environmental justice on its Tiering  Form has been delayed because it is only one of several issues being  considered for inclusion in the tiering process.
Regarding our second recommendation to improve training and include  Environmental Justice coordinators in workgroups when appropriate, our  latest information on EPA’s progress shows mixed results. On the one  hand, EPA continues to provide an environmental justice training course  that began in 2002, and has included environmental justice in recent  courses to help rule writers understand how environmental justice ties  into the rulemaking process. On the other hand, some training courses that  were planned have not yet been developed. Specifically, the Office of  Policy, Economics, and Innovation has not completed the planned  development of training on ways to consider environmental justice during  the regulation development process. In addition, officials from EPA’s  Office of Air and Radiation told us in July that they were unable to develop  environmental justice training––training EPA told us in 2006 that it had  already developed––due to staff turnover and other reasons. Regarding  our recommendation to involve the Environmental Justice coordinators in  rulemaking workgroups when appropriate, EPA officials told us that  active, hands-on participation by Environmental Justice coordinators in  rulemakings has yet to occur.
Regarding our third recommendation that EPA identify the data and  develop modeling techniques to assess potential environmental justice  impacts in economic reviews, EPA officials said that their data and models  have improved since our 2005 report, but that their level of sophistication  has not reached their goal for purposes of environmental justice  considerations. EPA officials said that to understand how development of  a rule might affect environmental justice for specific communities, further  improvements are needed in modeling, and more specific data are needed  about the socio-economic, health, and environmental composition of  communities. Only when they have achieved such modeling and data  improvements can they develop guidance on conducting an economic  analysis of environmental justice issues. According to EPA, among other  things, economists within the Office of Air and Radiation are continuing to  evaluate and enhance their models in a way that will further improve  consideration of environmental justice during rulemaking. For example,  EPA officials told us that a contractor would begin to analyze the  environmental justice implications of a yet-to-be-determined regulation to  control a specific air pollutant in July 2007. EPA expects that the study,  due in June 2008, will give the agency information about what socio- economic groups experience the benefits of a particular air regulation, and  which ones bear the costs. EPA expects that the analysis will serve as a  prototype for analyses of other pollutants.
Regarding our fourth recommendation that the Administrator direct  cognizant officials to respond more fully to public comments on  environmental justice, EPA officials cited one example of an air rule in  which the Office of Air and Radiation received comments from tribes and  other commenters who believed that the a proposed air quality standard  raised environmental justice concerns. According to the officials, the  agency discussed the comments in the preamble to the final rule and in the  associated response-to-comments document. Nonetheless, the officials  with whom we met said they were unaware of any memoranda or revised  guidance that would encourage more global, EPA-wide progress on this  important issue.
As we testified in July 2007, EPA’s actions to date were sufficiently  incomplete that measurable benchmarks are needed to achieve  environmental justice goals and hold agency officials accountable for  making meaningful progress on environmental justice issues.
section_title: EPA’s TRI Rulemaking Deviated From Key Internal Guidelines, Including Some Related to Environmental Justice
paragraphs: As I discussed in our February 2007 testimony, EPA deviated from key  internal guidelines in developing the TRI Burden Reduction Rule. EPA’s  Action Development Process provides a sequence of steps designed to  ensure that scientific, economic, and policy issues are adequately  addressed at the appropriate stages of rule development and to ensure  cross-agency participation until the final rule is completed. Some of those  steps relate to environmental justice issues. We found that EPA’s  deviations were caused, in part, by pressure from the Office of  Management and Budget to reduce industry’s TRI reporting burden by the  end of December 2006. Throughout this process, senior EPA management  has the authority to depart from the guidelines. Nevertheless, we identified  several significant differences between the guidelines and the process that  EPA followed in developing the TRI rule. Specifically:    EPA did not follow a key element of its guidelines that is intended to  identify and selection the options that best achieve the goal of the  rulemaking. Specifically, an internal workgroup was charged with  identifying and assessing options to reduce TRI reporting burden on  industry and providing EPA management with a set of options from which  management makes the final selection. However, in this case EPA  management selected an altogether different option than the ones  identified and assessed by the TRI workgroup. The TRI workgroup  identified three options from a larger list of possible options that had been  identified through a public stakeholder process, and the workgroup had  scoped out these options’ costs, benefits, and feasibility. The first two  options allowed facilities to use Form A in lieu of Form R for PBT  chemicals, provided the facility had no releases to the environment. The  third option would have created a new form, in lieu of Form R, for  facilities to report “no significant change” if their releases changed little  from the previous year. Under this element of EPA’s guidelines, senior  management then selects the option(s) that best achieve the rule’s goals.  However, based on our review of documents from the June 2005 options  selection briefing for the Administrator and subsequent interviews with  senior EPA officials, EPA deviated from this process. Specifically, it  appears that the Office of Management and Budget (OMB) suggested an  alternate option—increasing the Form A eligibility for non-PBT chemicals  from 500 to 5,000 pounds—as a way of providing what OMB considered  significant burden reduction. Yet the TRI workgroup had previously  dropped this option from further consideration because of its impact on  the TRI. In addition to reviving this burden reduction option, the  Administrator directed EPA staff to expedite the rule development process  after the briefing in order to meet a commitment to OMB to reduce the TRI  reporting burden by the end of December 2006.
Second, we found problems with the extent to which the agency sought  input from internal stakeholders. EPA’s rule development guidelines are  designed to ensure cross-agency participation until the rule is completed.  For example, a key step in the guidelines provides for the draft rule and  supporting analyses to be circulated for final agency review, when EPA’s  internal and regional offices should have discussed with senior  management whether they concurred with the rule. As provided for in its  guidelines, EPA conducted a final agency review for the rule in July 2005.  However, the draft rule and accompanying economic analysis that was  circulated for review did not discuss or evaluate the impact of raising the  Form A non-PBT threshold above 500 pounds because the economic  analysis for this option was not yet completed. In fact, such an analysis  was not completed until after EPA sent the proposed rule to OMB for  review. Because the final agency review package addressed to the “no  significant change” option rather than the increased Form A threshold  option, the EPA Administrator and the EPA Assistant Administrator for  Environmental Information likely received limited input from internal  stakeholders about the option to increase the Form A non-PBT threshold  prior to sending the proposed rule to OMB for official review. Indeed, a  measure of how rushed the process became is that the economic analysis  for the proposed rule was completed just days before the proposal was  signed by the Administrator on September 21, 2005 for publication in the  Federal Register.
Third, our review of EPA’s rule development process found that the  agency did not conduct an environmental justice analysis to substantiate  its assertion that the TRI rule would not have environmental justice  impacts. In its proposed rule, EPA stated that it had “no indication that  either option [changing reporting requirements for non-PBT and PBT  chemicals] will disproportionately impact minority or low-income  communities.” EPA concluded that it “believes that the data provided  under this proposed rule will continue to provide valuable information  that fulfills the purposes of the TRI program…” and that “the principal  consequence of finalizing today’s action would be to reduce the level of  detail available  on some toxic chemical releases or  management.” However, the reason EPA said it had no indication about  environmental justice impacts is because the agency did not complete an  environmental justice assessment before it published the rule for comment  in the Federal Register. Furthermore, we found that the statement  concerning disproportionate impacts in the proposed rule was not written  by EPA; rather, it was added by the Office of Management and Budget  during its official review of the rule.
After publication of the TRI rule in the Federal Register, EPA received  over 100,000 comments during the rule’s public comment period. Most  commenters opposed EPA’s rule because of its impact on the TRI, and  some commenters, including the attorneys general of California,  Connecticut, Illinois, Iowa, Maryland, Massachusetts, New Hampshire,  New Jersey, New Mexico, New York, Vermont, and Wisconsin, questioned  whether EPA had evaluated environmental justice issues. In addition,  three members of the House Committee on Government Reform wrote to  EPA Administrator Stephen Johnson in December 2005 asking that he  substantiate EPA’s conclusion that the TRI rule would not  disproportionately impact minority and low-income communities.
In March 2006, EPA provided Congress with an environmental justice  analysis showing that it had evaluated affected areas by zip codes and by  proximity to facilities reporting to TRI. Table 1 summarizes the results of  that analysis, which found that communities within 1 mile of facilities that  reported to the TRI were about 42 percent minority, on average, compared  to about 32 percent for the country as a whole. In addition those same  communities are about 17 percent below the poverty level, compared to  about 13 percent for the country as a whole. (Compare table 1, columns A  and B.)
EPA concluded that the results showed little variance in minority or  poverty concentration near facilities currently reporting to the TRI  compared to facilities that would be affected by the rule. (Compare table  1, columns B and C.) EPA argued that “while there is a higher proportion  of minority and low-income communities in close proximity to some TRI  facilities than in the population generally, the rule does not appear to have  a disproportionate impact on these communities, since facilities in these  communities are no more likely than elsewhere to become eligible to use  Form A as a result of the rule.” However, EPA’s analysis indicates that TRI  facilities are in communities that are one-third more minority and one- quarter more low-income, on average, than the U.S. population as a whole.  Therefore, in comparison to the country at large, those populations would  likely be disproportionately affected by an across-the-board reduction in  TRI information. (Compare table 1, columns A and C.). Thus, EPA  assumed that although minority and low-income communities  disproportionately benefit from TRI information, this fact was irrelevant to  its environmental justice analysis. However, the agency did not explain or  provide support for this assumption.
I would like to illustrate the impact of EPA’s rule on the TRI using a new  tool that can help the public better understand environmental issues in  their communities. Google Earth is a free geographic mapping tool that  overlays various content, including TRI data from EPA, onto satellite  photos and maps. Using this tool, the public can combine EPA’s TRI and  various demographic data to view the environmental justice impacts of  EPA’s TRI rule. As an example, Figure 1 shows a satellite image of  southern California, including Los Angeles County and part of Orange  County. The small dots indicate TRI facilities eligible for burden reduction  under the TRI rule (i.e., eligible for reduced reporting on Form A). On top  of every facility is a cylinder that indicates the demographic details of the  people living within 1 mile of the facilities. Specifically, the cylinders’ color  shows the percent of that population that is minority (e.g., red cylinders  indicate a community that is 80% or more minority). The cylinders’ height  shows the percent of that population living below the poverty level (e.g.,  taller cylinders indicate poorer communities). As the height and color of  the cylinders shows, the communities in southern California near TRI- reporting facilities that are eligible for reduced reporting under EPA’s rule,  are disproportionately minority and low-income.
As I mentioned earlier in my testimony, EPA’s latest response to our  environmental justice recommendations used TRI as an example of how  the agency has improved its handling of environmental justice in the rule  development process. However, our analysis shows that EPA did not  complete an environmental justice assessment before concluding that the  proposed TRI rule did not disproportionately affect minority and low- income populations. Even after EPA completed its analysis—in response  to pressure from Members of Congress and the public—the agency  concluded that the rule had no environmental justice implications despite  the fact that TRI facilities are, on average, more likely to be minority and  low-income than the U.S. as a whole; therefore, in comparison to the  population at large, those populations would likely be disproportionately  affected by an across-the-board reduction in TRI information.
section_title: EPA Actions Reduce the Amount of Information About Toxic Chemical Releases Previously Available to the Public
paragraphs: EPA asserted that its TRI Burden Reduction Rule will result in significant  burden reduction without losing critical information, but our analyses  show otherwise. We found that the rule, which went into effect for the  reports that were due by July 1st of this year, reduces the quantity and  detail of information currently available to many communities about toxic  chemicals used, transported, or released in their environment. For each  facility that chooses to file a Form A instead of Form R, the public will no  longer have available quantitative information about a facility’s releases  and waste management practices for a specific chemical that the facility  manufactured, processed, or otherwise used. Appendix I shows the data  that is contained on Form R compared to Form A. It is not possible to  precisely quantify how much information will no longer be reported to the  TRI on the detailed Form R because not all eligible facilities will take  advantage of rule allowing them to submit the brief Form A. But using the  most recent available data for calendar year 2005, it is possible to estimate  what currently-reported information no longer has to be reported under  EPA’s revised TRI reporting requirements.
Our analysis shows that EPA’s TRI rule could, by increasing the number of  facilities that may use Form A, significantly reduce the amount of  information currently available to many communities about toxic  chemicals used, transported, or released into their environment. EPA  estimated that the impact of its change to TRI would be minimal;  amounting to less than 1 percent of total pounds of chemicals released  nationally that no longer would have to be reported to the TRI. However,  we found that the impact on individual communities is likely to be more  significant than these national aggregate totals indicate. Specifically, EPA  estimated that the Form R reports that could convert to Form A account  for 5.7 million pounds of releases not being reported to the TRI (only 0.14%  of all TRI release pounds) and an additional 10.5 million pounds of waste  management activities (0.06% of total waste management pounds).  However, to understand the potential impact of EPA’s changes to TRI  reporting requirements more locally, we used 2005 TRI data to estimate  the number of detailed Form R reports that would no longer have to be  submitted in each state and found that nearly 22,200 Form R reports (28  percent) could convert to Form A under EPA’s new Form A thresholds.  The number of possible conversions ranges by state from 25 in Vermont  (27.2 percent of all Form Rs formerly filed in the state) to 2,196 Form Rs in  Texas (30.6 percent of Form Rs formerly filed in the state). As figure 2  shows, Alaska, California, Connecticut, Georgia, Hawaii, Illinois,  Maryland, Massachusetts, New Jersey, New York, North Carolina, Rhode  Island, and Texas could lose at least 30 percent of Form R reports.
Another way to characterize the impact of the TRI burden reduction rule is  to examine what currently-available public data may no longer be reported  about specific chemicals at the state level. The number of chemicals for  which only Form A information may be reported under the TRI rule ranges  from 3 chemicals in South Dakota to 60 chemicals in Georgia. That means  that the specific quantitative information currently reported about those  chemicals may no longer appear in the TRI database. Figure 3 shows that  thirteen states—Delaware, Georgia, Hawaii, Iowa, Maryland,  Massachusetts, Missouri, North Carolina, Oklahoma, Tennessee, Vermont,  West Virginia, and Wisconsin—could no longer have quantitative  information about at least 20 percent of TRI-reported chemicals in the  state.
The impact of the loss of information from these Form R reports can also  be understood in terms of the number of facilities that could be affected.  We estimated that 6,620 facilities nationwide could chose to convert at  least one Form R to a Form A, and about 54 percent of those would be  eligible to convert all their Form Rs to Form A. That means that  approximately 3,565 facilities would not have to report any quantitative  information about their chemical releases and other waste management  practices to the TRI, according to our estimates. The number of facilities  ranges from 5 in Alaska to 302 in California. For example, in 2005, the  ATSC Marine Terminal, bulk petroleum storage facility in Los Angeles  County, California, reported releases of 13 different chemicals—including  highly toxic benzene, toluene, and xylene—to the air. Although the  facility’s releases totaled about 5,000 pounds, it released less than 2,000  pounds of each chemical, and therefore would no longer have to file Form  Rs for them. As figure 4 shows, more than 10 percent of facilities in each  state except Idaho would no longer have to report any quantitative  information to the TRI. The most affected states are Colorado,  Connecticut, the District of Columbia, Hawaii, Massachusetts, and Rhode  Island, where more than 20 percent of facilities could choose to not  disclose the details of their chemical releases and other waste  management practices by submitting a Form A in lieu of a Form R.  Furthermore, our analysis found that citizens living in 75 counties in the  United States—including 11 in Texas, 10 in Virginia, and 6 in Georgia— could have no quantitative TRI information about local toxic pollution.
With regard to EPA’s assertion that the TRI rule will result in significant  reduction in industry’s reporting burden—the primary rationale for the  rule—the agency estimated that the rule would save, at most, $5.9 million.  (See table 2.) According to our calculations, these costs savings amount to  only 4 percent of the $147.8 million total annual cost to industry of TRI  reporting. Also, as we testified in February 2007, EPA’s estimate likely  overestimates the total cost savings (i.e., burden reduction) that will be  realized by reporting facilities because not all eligible facilities will choose  to file a Form A in lieu of Form R.
section_title: Concluding Observations
paragraphs: Environmental justice and the TRI are related and mutually dependent.  Our assessment shows that EPA did not fully consider important impacts  of its TRI rule, including environmental justice impacts on communities,  when evaluating the rule’s costs and benefits. That is, EPA’s recent  changes to TRI reporting requirements will reduce the amount and  specificity of toxic chemical information that facilities have to report to  the TRI and that will, in turn, impact communities’ ability to assess  environmental justice and other issues. It is unlikely that the TRI rule  provides, as EPA asserts, significant reduction in industry’s reporting  burden without losing critical environmental information.
Mr. Chairman, this concludes my prepared statement. I would be happy to  respond to any questions that you or members of the Subcommittee may  have at this time.
section_title: Contact and Staff Acknowledgments
paragraphs: Contact points for our Offices of Congressional Relations and Public  Affairs may be found on the last page of this statement. For further  information about this testimony, please contact John Stephenson at (202)  512-3841 or stephensonj@gao.gov. Key contributors to this testimony were  Steven Elstein, Terrance Horner, Richard Johnson, and Daniel Semick.  Other contributors included Mark Braza, Karen Febey, Kate Cardamone,  Alison O’Neill, and Jennifer Popovic.
section_title: Appendix I: Comparison of Information Collected on the TRI Form R and Form A Certification Statement
paragraphs: Facilities must submit a detailed Form R report for each designated  chemical that they use in excess of certain thresholds, or certify that they  are not subject to the reporting requirement by submitting a brief Form A  certification statement. Form A captures general information about the  facility, such as address, parent company, industry type, and basic  information about the chemical or chemicals it released. Form R includes  the same information, but also requires facilities to provide details about  the quantity of the chemical they disposed or released onsite to the air,  water, land, and injected underground, or transferred for disposal or  release off-site. Table 3 provides details about the specific information the  facilities provide on the Form R and Form A.
section_title: Appendix II: GAO Estimates of the Possible Impact of Reporting Changes on TRI Data
paragraphs: We analyzed 2005 TRI data provided by EPA to estimate the number of  Form Rs that could convert to Form A in each state and determined the  possible impacts that this could have on data about specific chemicals and  facilities. EPA released the 2005 data in March 2007; 2006 data is expected  in spring of 2008. Table 4 provides our estimates of the total number of  Form Rs eligible to convert to Form A, including the percent of total Form  Rs submitted by facilities in each state. The table also provides our  estimates of the number of unique chemicals for which no quantitative  information would have to be reported in each state, including the percent  of total chemicals reported in each state. The last two columns provide  our estimates for the number of facilities that would longer have to  provide quantitative information about their chemical releases and waste  management practices, including the percent of total facilities reporting in  each state.