Risk Policy Report, March 27, 2007


[Rachel's introduction: As the scandals of his Presidency hold our attention, Mr. Bush is busy in the back room, rolling back laws and regulations that were intended to protect the natural environment and public health.]

By Douglas P. Guarino

A recent executive order signed by President Bush revokes Clinton-era measures requiring federal facilities to report their pollution releases to EPA's Toxic Release Inventory (TRI), which the agency uses for a slew of regulatory decisions governing water quality, emissions and other regulatory requirements.

While the White House Council on Environmental Quality (CEQ) is drafting guidance that a spokeswoman says will continue to require federal facilities to report TRI releases, environmentalists are concerned that it could further diminish TRI data after EPA issued a controversial regulation last December that scales back industry's reporting requirements.

Environmentalists say that if the upcoming CEQ guidance does not clarify that federal facilities must still report to TRI, they will call on Democratic lawmakers to mandate federal facility TRI reporting in pending legislation seeking to block EPA's new regulation from taking effect.

Rep. Frank Pallone (D-NJ), one of the sponsors of the pending legislation, told reporters March 22 that Democrats may seek to attach the TRI legislation to must-pass appropriations legislation later this year. Last year, the House approved similar legislation as an amendment to the fiscal year 2007 Interior and Environment Appropriations bill.

The legislation could gain a further boost after EPA unveiled TRI data for 2005, which shows a three percent increase overall in total disposal and other releases. "Annual changes are not unusual," EPA said in a March 22 press release, saying that possible reasons for the increase include production increases, fluctuations in the content of raw materials used in particular industries and changes in releases at large facilities that impact the national data. Relevant documents are available on InsideEPA.com.

Executive Order (EO) 13423, which the Bush administration published in the Federal Register Jan. 26, revokes EO 13148, which former President Clinton issued April 21, 2000. Section 501 of the Clinton order required federal facilities to report to TRI under section 313 of the Emergency Planning & Community Right-to-Know Act (EPCRA).

Environmentalists are raising concerns federal facilities may be exempt from all TRI reporting in the future as a result of the Bush order, given that federal facilities are not required to report to TRI by law. The exact impact of the order, however, will largely depend on what guidance CEQ issues to EPA and other federal agencies on how to implement the order, activist sources say.

"Given that E.O. 13148 was the only order still in place requiring federal facilities to report under the TRI program, Bush's new order may exempt all federal facilities from reporting to TRI in the future," an analysis of the order prepared by the activist group OMB Watch says.

A CEQ spokeswoman says federal facilities are still required to report to TRI despite the Bush executive order. The CEQ spokeswoman says TRI reporting requirements under previous executive orders will continue despite the order. The spokeswoman expects CEQ will issue guidance within "the next week or so" that "should spell out implementation requirements" for the new order.

Environmentalists say they are concerned about the possibility of a TRI exemption for federal facilities due to the significant amount of toxic releases from Defense Department (DOD) and Energy Department (DOE) facilities. "In 2004, the most recent year of TRI data, 313 federal facilities reported 90 million pounds of toxic chemicals released to the air, water and land," according to OMB Watch.

Activists are particularly concerned about air releases from coal- fired power plants under the Tennessee Valley Authority, one environmentalist adds. The Tennessee Valley Authority had more than 69 million pounds of TRI releases in 2004, the environmentalist says.

Controversy surrounding the executive order comes as Pallone and other Democrats are vowing to pass legislation that would block EPA from implementing its rule scaling back TRI reporting requirements for industry. The rule, which EPA finalized Dec. 18, raises the reporting threshold for chemical releases under TRI from 500 pounds to 2,000 pounds and for the first time allows facilities that manage up to 500 pounds of persistent bioaccumulative toxins (PBTs) to use a simplified reporting format.

Sens. Frank Lautenberg (D-NJ) and Robert Menendez (D-NJ), together with Pallone and Rep. Hilda Solis (D-CA), have introduced bicameral legislation that would block EPA's regulation from taking effect.

During a March 22 conference call, Pallone told reporters that Democrats may seek to attach the legislation to appropriations language later this year.

Pallone told reporters the first step for the bill in this Congress would be for the House Energy & Commerce environment subcommittee to host a hearing on the legislation, but said he had not yet secured a date for a hearing due to a slew of recent budget hearings that have occupied the committee's schedule. Asked if full committee chairman John Dingell (D-MI) supported the legislation, Pallone said Dingell "for the most part has been pretty supportive of community right to know over the years."

Pallone and Solis participated in the conference call in order to announce the release of a new analysis of 2004 TRI data prepared by the activist group U.S. PIRG, Toxic Pollution and Health. The lawmakers said the study, which analyzes chemical releases reported by TRI and categorizes them by known health effects, is an example of the type of information that will be limited if EPA's new rule is allowed to go forward.

The environmentalist says the study, along with recent reports that the rule will lead to significant decreases in agency estimates of national environmental and human health risks, will help bolster arguments in support of the legislation.

An informed source familiar with modeling EPA conducted prior to releasing the rule told Inside EPA recently that scaled-back reporting would result in a decrease of 10 to 20 percent of calculated potential risk nationally using some agency assessment tools, even though EPA estimates the new rule will only result in a 1 percent decrease in reported releases. Alterations to EPA data on potential risks are significant because federal, state and local regulators use the data to set enforcement and air monitoring priorities.

A supporter of the rule argues that a 2004 study prepared for the Small Business Administration (SBA) shows that "for 99 percent of all of the nation's 3,142 counties, the changes in reported risk are not significant." However, the same report shows that reported risks for some counties, such as Arapahoe, CO, will decline by nearly 80 percent under the new thresholds using EPA models. Charleston, SC, will lose nearly 70 percent of its reported risks, according to the study, and Caddo, LA, will lose nearly 60 percent.

EPA officials could not be reached for comment.