EPA Withdraws TRI Clarification Rule That Would Protect Public Health
by Cassandra Lovejoy*, 6/24/2011
Last Friday, the U.S. Environmental Protection Agency (EPA) withdrew from consideration a final rule that clarified exemptions to its Toxics Release Inventory (TRI) reporting requirement. The articles exemption clarification was being reviewed by the Office of Information and Regulatory Affairs (OIRA), the last step before it could be finalized and published in the Federal Register. The OIRA review process is not made available to the public, so it is impossible to tell what caused EPA to pull the rule.
TRI is an important part of the Emergency Planning and Community Right-to-Know Act that requires manufacturers whose production processes release toxic chemicals into the environment above a certain threshold to report it to EPA. However, chemical releases that occur during storage of materials not made at the facility, or through the natural deterioration of materials, are exempt from the TRI reporting requirement. EPA created this “articles exemption” to reduce the reporting burden on facilities.
In 2007, representatives of the wood treatment industry contacted EPA for guidance on the articles exemption. EPA found that wood treatment facilities incorrectly believed off-gassing wood that had been treated with toxic chemicals was exempt from TRI reporting requirements under the articles exemption provision. As a result, wood treatment plants were exposing surrounding communities to toxic chemicals such as ammonia, arsenic, and benzene without reporting it. EPA, acknowledging that its existing guidance on exempt articles was misleading, began the rulemaking process to clarify that off-gassing did not qualify for the exemption.
The withdrawal of this rule is cause for concern for two reasons. First, EPA pulled the rule in its final stages, after it had been through the rigors of the rulemaking process during which stakeholders, the public, and OIRA had the opportunity to weigh in on the proposal. In addition, EPA held a meeting with industry in July 2010, before the final rule was completed, giving the agency ample opportunity to respond to industry complaints. EPA then finished the final rule and submitted it to OIRA in November 2010. The withdrawal indicates that EPA must have received new information or felt additional political pressure since drafting the final rule, though none of this has been disclosed to the public.
Second, OIRA delayed its review of the exemption clarification, which is often a red flag indicating potential industry or political interference in the rulemaking process. By law, OIRA has 90 days to review a rule and return it to the agency for revisions or for publication in the Federal Register. It may file one 30-day extension if it needs more time to reach a decision on the rule. The exemption clarification was at OIRA for 214 days – more than twice the standard time for review.
EPA has ignored press requests for information regarding the withdrawal of the rule, including whether the agency plans to resubmit a revised version of the exemption clarification or to cancel the clarification entirely. While not required by law, EPA should release the OIRA markup of the final rule and let the public know why it pulled a straightforward clarification that would have improved protections to public health and safety.