GOVERNMENT
EPA To Require Chemical Firms To Report Use Data On Toxics • Despite vehement opposition by industry, EPA moves ahead with plan for reporting mass accounting data David J. Hanson, C&EN Washington
T
he Environmental Protection Agency has decided it will require companies to report mass accounting data, or chemical use data, for toxic chemicals as a basic community right-to-know issue. A proposed regulation is not expected until late next vear. Support for such a program comes almost entirely from the agency and a variety of environmental organizations that use this kind of data for monitoring the chemical industry. The regulated companies are rigidly opposed to reporting such data. Legal challenges to the program are almost certain. EPA has moved ahead with the program mainly because President Clinton, in a speech on Aug. 8, told the agency to increase its emphasis on right-to-know issues and seek information on a mass accounting program. The agency apparently took this as a
EPA wants companies to report toxics use data from numerous sites within a plant
certain toxic chemicals to report any environmental releases of those chemicals to EPA and state agencies. Since the first reports were made in 1989, both EPA and industry have called TRI a success. But there are too many "data gaps" in TRI, EPA says. To fill in the gaps, facilities using toxic chemicals will have to report data on material inputs, processing data, and output and product data to EPA and state right-to-know agencies. Current plans would require reporting only on chemicals listed on TRI, including the 300 newly added compounds, but EPA could expand the list considerably. Since mass accounting first received a serious hearing a couple of years ago, the chemical industry has adamantly opposed it. Judging by its comments on the EPA scheme, the Chemical Manufacturers Association clearly thinks the agency has gone too far. CMA says EPA has not come up with any identifiable goals for using the data and that the collection of such information will not result in the benefits the agency anticipates. Furthermore, CMA charges that the costs to the regulated facilities are enormous and unjustified and that it is questionable whether EPA even has the legal authority to collect and distribute mass accounting information. Proponents of the idea seem to think that beConsumed in-process on-site cause having TRI data is good, having a lot more data is even better—even for companies. Kevin
mandate and is determined to propose regulations as soon as it can. Lynn R. Goldman, EPA assistant administrator for pollution prevention and toxic substances, opened a twoday public meeting on this issue last month by saying: "It is no longer a question of whether EPA should move forward, but how we should move forward. " Although the meeting ostensibly was called to resolve problems related to expanding toxics reporting, EPA apparently already had made its decision. "Materials accounting provides a critical look at how toxic materials flow through a community to a facility, an understanding of how workers within the facility could be exposed, and an understanding of the final disposition of the toxic chemicals," according to an EPA report sent to President Clinton last month. Much of the information EPA used in reaching its conclusions comes from the experience of two states that already have some sort of mass accounting laws. New Jersey began collecting this kind of data in 1984 and Massachusetts has required chemical use reports since 1989. EPA says that in its current form, the Toxics Release Inventory (TRI) does not provide information on toxics source reduction. TRI is the program under the 1986 Superfund law that requires manufacturers using
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Starting raw material inventory
Ending raw material inventory
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\ Stored on-site Occupational as or in product exposure issues
Source: Environmental Protection Agency
NOVEMBER 6, 1995 C&EN
17
GOVERNMENT
Mills, director of pollution control pro grams for the Environmental Defense Fund, told EPA that "toxics use [mass] accounting is about good business prac tices in industry. Requiring companies to go through the process can lead to inno vative processes and products." The benefits are vague, however. Fulfilling a community's right-to-know about toxic chemicals is a stated goal. Hillel Gray, an attorney with the Na tional Environmental Law Center, based in Boston, told the meeting par ticipants that if people knew of toxic chemicals in products, they would be able to avoid them better, and condi tions that lead to problems such as "sick-building syndrome" could be eased. The chemical industry appears to have been ignored by EPA. For exam ple, the industry argument that there is no necessary connection between the simple fact that chemicals are used in a plant and any health or environmental problem does not seem to be an issue at EPA. Furthermore, members of in dustry complain that a lot of the data that EPA is seeking already are being reported under various statutes. EPA appears unconcerned by such overlaps. In her comments to EPA, Nancy J. Ekart, of Eastman Chemical's environ mental affairs group, pointed out that Congress debated mass accounting in 1986 when the original Community Right-to-Know Act, which set up TRI, was incorporated into the Superfund Amendment & Reauthorization Act, and decided then not to require it. Con gress did ask for a National Research Council report on a mass balance ap proach to toxics reporting, which it re ceived in 1990. That report, according to Ekart, concluded that neither mass balance nor material accounting is use ful for estimating toxics releases, for determining waste reduction efficiency, or for calculating the efficiency of a plant's operation. Ekart said EPA should stop and take a good look at the present TRI to see if there really are data gaps. It should then try to determine what information the public really needs that would ben efit the environment. But a bigger problem to industry is the possibility that all this new data could damage its economic competi tiveness. Lawrence M. Fischer, manag er of waste reduction and control for AlliedSignal's engineered materials 18
NOVEMBER 6, 1995 C&EN
business in Morristown, N.J., presented details of the industry's problems with confidential business information. He described two recently completed stud ies on accessibility of data, which show how data can be pieced together to give detailed information about a plant's capacity and use. One study was performed by SRI In ternational and completed in 1993. SRI concluded that "public disclosure of [sensitive business information] reduc es the competitiveness of U.S.-based chemical companies by allowing com petitors, both domestic and foreign, to access and use at no cost to them the intellectual property generated at sig nificant cost to the owner of the information." The second study, an analysis of readily available data for a single plant, was done this year by the consulting firm Kline & Co. Using standard indus try references and New Jersey Depart ment of Environmental Quality data comparable to what is being recom mended in the TRI expansion, Kline compiled a very accurate profile of that plant's operation. Fischer told EPA, "There are still plenty of naive people in industry who believe that their data cannot be ferret ed out of the voluminous agency files and that nobody's using that data for competitive purposes." There are pri vate firms that do nothing but try to collect such data, Fischer said, and fre quently are collecting it for foreign companies. "[Confidential business in formation] issues are not being ad dressed by existing procedures because most firms haven't become aware of the extent to which these data are being sought and used," he concluded. EPA notes industry's concern, but in dicates it is not a major problem based on data from the two states that al ready have chemical use data lawrs. Representatives from both New Jersey and Massachusetts, speaking at the public meeting, said claims of confi dential business information under their mass accounting laws have been very few, indicating that companies are not very concerned about losing confi dential data. EPA believes that the pro tections it and state regulatory agencies already afford confidentiality claims are sufficient. The cost of such reporting to facili ties also is controversial. EPA main tains that much of these data already
are being collected by companies and that the additional calculations will not be too great a burden. But according to data from CMA, the industry reporting burden will double, based on a survey of companies operating in Massachu setts and New Jersey. Another estimate places the cost for a large chemical manufacturer at $1.5 million to comply the first year and about $800,000 annu ally after that. CMA says this additional paperwork flies in the face of Clinton's regulatory reform initiative, which is supposed to reduce industry's reporting load 25% by July 1996. The chemical industry also believes that EPA has overstepped its statutory authority in trying to collect and dis tribute mass accounting data. CMA holds that EPA's plans are "divergent from the intended legislative mandate of the Emergency Planning & Commu nity Right-to-Know Act." Based on its review of the law, CMA concludes that Congress did not give EPA authority to collect this information. EPA's public meeting last month was supposed to provide a dialogue about the issue surrounding mass ac counting data and its use in pollution prevention. But the arguments have not progressed since EPA's first public meeting on this problem, held in Sep tember 1994, and little resolution of dif ferences was made at last month's meeting. EPA already has made up its mind that this type of reporting will be required and has dismissed the prob lems of industry as mostly inconse quential. Because of the fuzzy legal standing of any such regulation, law suits from CMA and other chemically related associations are expected. EPA already is being sued because of its ex pansion of TRI last November. Congress may well have something to say about the whole issue. One of the specific riders attached by the House to the appropriations bill for EPA's budget for fiscal 1996 prohibits the agency from spending any funds to collect industry data that are not specif ically described in existing law. The ob vious intent of this provision is to pre vent EPA from beginning a mass ac counting program. The Senate version of the bill contains no such provision, and Clinton has pledged to veto the spending bill anyway. Nevertheless, it is possible that the mass accounting prohibition will make it into law. Π
