Twelve states are suing the U.S. Environmental Protection Agency (EPA) over the December 2006 regulation that weakened the Toxics Release Inventory (TRI). New York Attorney General Andrew Cuomo, leading the suit, filed in the U.S. District Court for the Southern District of New York on Nov. 28. Joining the suit are attorneys general from Arizona, California, Connecticut, Illinois, Maine, Massachusetts, Minnesota, New Jersey and Vermont, and the Pennsylvania Department of Environmental Protection. The EPA's Dec. 22, 2006, rule change, which went into effect Jan. 22, raised detailed reporting thresholds up to ten times above the old requirements. The suit claims that the increase was a violation of the Emergency Planning and Community Right-to-Know Act (EPCRA) because EPA does not have the authority to make changes that have such substantial impact. Moreover, EPA did not adequately justify the change and failed to follow its own rulemaking procedures. The TRI program, which tracks the waste production and release of approximately 650 dangerous chemicals, has been one of EPA's most successful programs. Previously, facilities had to report detailed information (Form R) about the amount of the chemical and where the chemical went for any amount over 500 pounds. For pollution amounts less than 500 pounds, facilities only had to file a short form certification (Form A) that the chemical was under the limit. Now, for the majority of TRI chemicals, the threshold for reduced reporting is 5,000 pounds, so long as 2,000 pounds or less are released directly to the environment. Though TRI does not mandate pollution reduction, the public disclosure of toxic pollution has acted as a powerful incentive for companies to reduce their generation of waste, eliminating over half of the annual toxic waste from the original chemical list since TRI's 1988 inception. In the last five years alone, TRI has shown an overall reduction of 2.8 billion pounds. The lawsuit's nineteen claims concentrate on the following four areas:

1. The change violates EPCRA because EPA did not apply the substantial majority standard on a chemical-by-chemical basis: EPCRA allows EPA to change the reporting threshold only if the "majority of the total releases of the chemical at all facilities" is still reported (EPCRA section 313(f)(2)). That only a small percentage of total national releases would be lost with the rule change is irrelevant since the majority standard must be applied to each chemical individually. EPA's own analysis indicates that at least half of the detailed reporting for up to 46 chemicals in 2004 would have been missing if the new standard had applied.
2. EPA's analysis in justifying the rule change was flawed: EPA never explained how it selected the seemingly random new threshold levels, how it calculated the amounts for lost reporting and why there were large variations in its calculations. EPA's analysis also failed to consider all of the facilities required to report to TRI, thereby reducing the ability to project the impact on the substantial majority. The suit also questioned how EPA calculated the burden reduction impacts and why health and environmental factors were not considered.
3. EPA's "burden reduction" justification is flawed and not in keeping with original legislative intent: EPA never explained why burden reduction was "necessary" to carry out EPCRA, instead justifying the change with the assumption that it will motivate pollution reduction. Regardless, pollution reduction is not actually a stated purpose of TRI. Instead, the threshold change works against the purpose of the program, which is to provide public information about chemical releases.
4. EPA's response to comments was inadequate and failed to meet the standards for the rule change process: Within the more than 122,000 comments that were submitted to EPA opposing this change, many raised a variety of these claims and complaints, which EPA failed to address.

Assistant EPA Administrator Molly O'Neill said in response to the lawsuit, "The TRI rule is making a good program better." Sean Moulton of OMB Watch disagreed, describing the change as "sweeping the thousands of tons of toxic waste under the carpet and calling it cleaning up the environment." In EPA's effort to defend the change, the agency has stressed that for Persistent Bioaccumulative Toxins (PBTs), the most dangerous chemicals, facilities must certify that there are zero releases to the environment. Moulton counters, "This incorrectly assumes that just because these PBTs are captured and stored in a barrel they are safe." Hurricane Katrina and other disasters have demonstrated that chemicals that facilities do not plan to release to the environment can wind up in the air and water. Stressing the PBT reporting requirements also allows EPA to avoid discussion of the new reporting threshold for the hundreds of other toxic chemicals under TRI, of which facilities are now allowed to release thousands of pounds without detailed reporting. There has been enormous opposition to changing this popular program. The attorney general suit is the latest development of opposition on many fronts. California passed state legislation to create a requirement to report toxic pollution to the state agency using the old federal thresholds. At the federal level, companion bills have been introduced in the House and Senate to reverse the TRI changes and strip EPA of the ability to cutback the program in the future. During an Oct. 4 hearing of the House Energy and Commerce Subcommittee on Environment and Hazardous Materials, the Government Accountability Office testified that an ongoing investigation into the rule change has revealed that EPA cut corners and did not adequately review the impact of the changes, including the environment justice impact. A report on the GAO investigation is expected within a month. This is the first legal challenge to the threshold change. District Judge Barbara S. Jones and Magistrate Judge Debra Freeman have been assigned to the case.