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Nearing the End of the Controversy on the TRI "Burden Reduction" Rule Changes

Beveridge & Diamond, P.C., March 6, 2009

The saga of EPA’s controversial 2006 changes to the Toxics Release Inventory (“TRI”) final rule, adopted by the Bush Administration to reduce reporting burdens on industry, may soon be over.  There is now a race between EPA and Congress to see who can invalidate those changes first.  But action may not come in time to affect the TRI reporting due by July l, 2009.

EPA’s TRI program began in 1987 under Section 313 of the Emergency Planning and Community Right-to-Know Act.[1]  The information-based program was enacted in the wake of the 1984 Bhopal chemical release which gave rise to a grassroots community-right-to-know movement in the U.S.[2]  The resulting TRI program requires businesses to report the locations and quantities of chemicals stored on-site, as well as any toxic chemical releases.  The program has been very effective.  From 1998 to 2005, there was nearly a 60% reduction in total releases of the 299 core chemicals that the program began tracking.[3] 

In 2005, the Bush Administration proposed changes to reduce the reporting burden on those entities subject to TRI reporting.[4]  EPA received 122,420 public comments in response to the proposal, and of those more than 99.97% were “strongly opposed.”[5]  The 2006 final rule raised the reporting thresholds for chemical releases from 500 pounds to 2,000 pounds and created a first-time threshold of 500 pounds for persistent bioaccumulative toxins (“PBTs”).[6]  In particular, the rule change expanded non-PBT chemical eligibility for Form A (which asks for much less information than Form R) by raising the eligibility threshold to 5,000 pounds of total annual waste management (i.e., releases, recycling, energy recovery, and treatment for destruction) provided total annual releases of the non-PBT chemical comprise no more than 2,000 pounds of the 5,000-pound total waste management limit.  It also allowed, for the first time, limited use of Form A for PBT chemicals when total annual releases of a PBT chemical are zero and the total annual amount of the PBT chemical recycled, combusted for energy, and treated for destruction does not exceed 500 pounds.

The final rule has been the source of considerable criticism since its December 2006 release.  A GAO report found that 3,500 facilities would not have to report their emissions under the higher thresholds.[7]  In 2007, both houses of Congress introduced bills known as the “Toxic Right-to-Know Protection Act,” which would have effectively rolled-back reporting requirements to the pre-2006 levels.[8]  However, neither bill passed.  California passed a law requiring facilities in that state to continue full TRI reporting as if EPA’s rule did not exist.[9]  Also in 2007, thirteen states filed suit in federal district court to invalidate the rule change.[10]  The Bush Administration defended the suit.

With the change from the Bush Administration to that of President Obama, EPA Administrator Lisa Jackson has been under pressure to withdraw the 2006 rule change.  For example, a November 2008 report by 29 non-governmental organizations to the Obama transition team called for EPA to overturn the 2006 rule.[11]  On March 3, 2009, 238 organizations and nearly 1,300 individuals sent Administrator Jackson a letter urging her to reverse the rule.[12]

Administrator Jackson was an opponent of the rule while she served as head of New Jersey’s Department of Environmental Protection, during which time New Jersey joined in the lawsuit to overturn the rule change.  On February 18, 2009, just 27 days after her confirmation, a federal court granted EPA’s request for a 60-day extension on its deadline to respond to a motion in the lawsuit “to permit the parties to engage in settlement discussions.”

When asked on February 27, 2009, if she would object to changing the rule, she stated, “I think that if it’s not done legislatively it would certainly be something that I would be interested in pursuing.”  With respect to the TRI lawsuit, she said, “obviously I don't want to prejudge settlement negotiations and I’m not doing them personally but I think you can read into that what I hope is an opportunity to move forward in an efficient manner to again get back to one of what I view as a bedrock principle here, which is more information about the chemicals that are released or circulated in commerce . . . . ”[13]

Congress may moot the need for a settlement.  On January 28, 2009, Rep. Frank Pallone (D-N.J.) introduced H.R. 776, a bill identical to the 2007 bills to overturn the rule changes.[14]  It has been referred to the House Commitee on Energy and Commerce, which is chaired by Rep. Henry Waxman (D-Cal.), a vocal critic of EPA during the Bush Administration.  More likely to be enacted is the Omnibus Appropriations Act, 2009, passed by the House on February 25, 2006 which states that the 2006 TRI rule “shall have no force or effect” and blocks all funding implementing the rule.[15] 

If the case is settled, either the court would vacate the 2006 rule on the basis that it was illegally promulgated, or EPA would agree to new rulemaking to reconsider the 2006 rule.  Rulemaking could take years.

In any case, it is unclear whether the pre-2006 thresholds can be restored in time for this year’s reporting, as the deadline for filing TRI forms for 2008 is July 1, 2009.[16]  Some facilities may already have reported under the current thresholds.

For more information, please contact Mark Duvall at mduvall@bdlaw.com. Bina Reddy assisted in preparation of this alert.

For a copy of the New York v. Johnson amended complaint, click here.


[1] See generally EPA, What is the Toxics Release Inventory (TRI) Program, http://www.epa.gov/tri/triprogram/whatis.htm.

[2] Id.

[3] OMB Watch, Dismantling the Public’s Right to Know 2 (Dec. 2005), http://www.ombwatch.org/files/pdfs/TRI_Report.pdf.

[4] TRI Reporting Forms Modification Proposed Rule, 70 Fed. Reg. 1674 (Jan. 10, 2005).

[5] OMB Watch, Against the Public’s Will 2 (Dec. 2006), http://www.ombwatch.org/files/info/TRICommentsReport.pdf.

[6] See 71 Fed. Reg. 76932 (Dec. 22, 2006).

[7] Government Accountability Office, GAO-08-115T, Environmental Right to Know:  EPA’s Recent Rule Could Reduce Availability of Toxic Chemical Information Used to Assess Environmental Justice 5 (Oct. 4, 2007), www.gao.gov/new.items/d08115t.pdf.

[8] S. 595, 110th Cong. (2007); H.R. 1055, 110th Cong. (2007).

[9] Cal. Health & Safety Code § 25546; A.B. 833, 2007-08 Leg., Reg. Sess. (Cal. 2007)

[10] New York v. Johnson, No. 1:07 cv 10632 (BSJ) (DCF) (S.D.N.Y. filed Nov. 28, 2007).

[11] Transition to Green – Leading the way to a healthy environment, a green economy and a sustainable future: Environmental Transition Recommendations for the Obama Administration 14-11 (Nov. 2008), http://docs.nrdc.org/legislation/files/leg_08112401a.pdf.

[12] Letter to Lisa Jackson, EPA Administrator (Mar. 3, 2009), http://www.uspirg.org/uploads/wy/q0/wyq0uCEOiRIritUJK4yjoA/tri-letter-with-signers.pdf.

[13] E&E Publishing, Interview Transcript: “EPA Administrator outlines agency goals, priorities” (Feb. 27, 2009), http://www.eenews.net/eep/epa_jackson/interview_full.

[14] H.R. 776, 111th Cong. (2009).

[15] H.R. 1105, § 425, 111th Cong. (2009).

[16] 40 C.F.R. § 372.30(d) (2008).