The U.S. Environmental Protection Agency (EPA) came under tough scrutiny at an Oct. 4 hearing of the House Energy and Commerce Subcommittee on Environment and Hazardous Materials for reducing the reporting standards of the Toxics Release Inventory (TRI) in December 2006.

The hearing focused on the Toxic Right-To-Know Protection Act (H.R. 1055), which would restore the TRI program, and the Environmental Justice Act of 2007 (H.R. 1103), which would codify a 1994 executive order requiring agencies to consider environmental justice issues.

John B. Stephenson, director of the Government Accountability Office's (GAO) Natural Resources and Environment Division, testified that EPA deviated in several ways from the agency's rulemaking procedures. "EPA did not follow guidelines to ensure that scientific, economic, and policy issues are addressed at appropriate stages of rule development." Stephenson testified that EPA failed to conduct a proper internal review of all the changes pursued in the rulemaking and rushed an economic analysis that was only finalized days before the rule was officially proposed.

Despite being required under Executive Order 12898 to analyze the environmental justice impacts of the rule, GAO concluded EPA had failed to adequately perform such a review. Stephenson reported that prior to the rule being proposed, "EPA did not complete an environmental justice assessment before concluding that the proposed TRI rule did not disproportionately affect minority and low income populations." Stephenson's testimony also explained that after congressional pressure forced EPA to later review the environmental justice impact that "EPA assumed that although minority and low-income communities disproportionately benefit from TRI information, this fact was irrelevant to its environmental justice analysis."

The GAO used new Google Earth mapping applications to illustrate the significant environment justice impacts on communities. Focusing on the Los Angeles area, the maps displayed a strong correlation between the location of facilities that would report less information and minority and low-income communities.

GAO found that the failure to follow rulemaking guidelines stemmed from interference from the Office of Management and Budget (OMB). "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." Apparently, OMB intervened late in the rulemaking process and re-introduced a provision to raise the reporting thresholds, which EPA personnel had already eliminated as a pursuable option. This late inclusion meant that the option received less review and more rushed analysis during the rulemaking process.

Molly A. O'Neill, Assistant Administrator for Environmental Information and Chief Information Officer at EPA, testified that the new TRI reporting thresholds "provided incentives to encourage pollution prevention and improved waste management." In response to the GAO conclusions that substandard analysis was conducted, O'Neill testified that all requirements had been met during the rulemaking.

Subcommittee Chair Rep. Albert Wynn (D-MD) questioned O'Neill about the agency's assertion that the reduced reporting would create incentives to reduce pollution. O'Neill explained that EPA believed that facilities would strive to reach the lower pollution levels in order to avoid the TRI reporting, hence driving reductions in pollution. Stephenson countered that if such incentives did exist, then it made more sense to leave the threshold at 500 pounds and get even more pollution reductions. O'Neill was unable to cite any study or analysis conducted by EPA to support the hypothesis that the new thresholds would create reductions in pollution.

On the hearing's second panel, several environmental justice advocates noted the importance of TRI information to communities. Jose Bravo, Executive Director of Just Transition Alliance, testified on behalf of the Communities for a Better Environment and stated that reports using TRI data have led to elimination of toxic pollution at some facilities. Bravo said, "This is tragic, because TRI has been so useful in identifying and prioritizing pollution sources, because reporting is so easy to do, and because the act of reporting itself makes companies much more aware of their toxics use."

Alan Finkelstein, an Assistant Fire Marshal from Strongsville, OH, testified about the importance of TRI information when planning for emergencies. "One of the first things that we learn in fire school is the importance of preplanning for incidents. Accessing TRI chemical data is just one piece of the puzzle for preplanning." Finkelstein acknowledged that TRI was not designed for emergency responders, but concluded that when planning for emergencies, you want to use all information available, and as such, the TRI has become an important tool in the emergency responders' arsenal.

Small business representatives including Thomas Sullivan, Chief Counsel for Advocacy in the Office of Advocacy at the Small Business Administration, and Andrew Bopp, Director of Public Affairs for the Society of Glass and Ceramic Decorators, testified that the TRI reporting changes represented an important reduction in the regulatory burden faced by small businesses. Though GAO's analysis indicates the changes would only save reporting facilities an estimated $900, both Sullivan and Bopp reported that for small businesses, such amounts were much more important and represented several work days taken away from other money-making activities.