[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
``THE TRI LEAD RULE: COSTS, COMPLIANCE AND SCIENCE''
=======================================================================
HEARING
before the
SUBCOMMITTEE ON REGULATORY REFORM
AND OVERSIGHT
of the
COMMITTEE ON SMALL BUSINESS
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
WASHINGTON, DC, JUNE 13, 2002
__________
Serial No. 107-62
Printed for the use of the Committee on Small Business
U.S. GOVERNMENT PRINTING OFFICE
80-876 WASHINGTON : 2002
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON SMALL BUSINESS
DONALD MANZULLO, Illinois, Chairman
LARRY COMBEST, Texas NYDIA M. VELAZQUEZ, New York
JOEL HEFLEY, Colorado JUANITA MILLENDER-MCDONALD,
ROSCOE G. BARTLETT, Maryland California
FRANK A. LOBIONDO, New Jersey DANNY K. DAVIS, Illinois
SUE W. KELLY, New York BILL PASCRELL, JR., New Jersey
STEVE CHABOT, Ohio DONNA M. CHRISTENSEN, Virgin
PATRICK J. TOOMEY, Pennsylvania Islands
JIM DEMINT, South Carolina ROBERT A. BRADY, Pennsylvania
JOHN R. THUNE, South Dakota TOM UDALL, New Mexico
MICHAEL PENCE, Indiana STEPHANIE TUBBS JONES, Ohio
MIKE FERGUSON, New Jersey CHARLES A. GONZALEZ, Texas
DARRELL E. ISSA, California DAVID D. PHELPS, Illinois
SAM GRAVES, Missouri GRACE F. NAPOLITANO, California
EDWARD L. SCHROCK, Virginia BRIAN BAIRD, Washington
GELIX J. GRUCCI, Jr., New York MARK UDALL, Colorado
TODD W. AKIN, Missouri JAMES R. LANGEVIN, Rhode Island
SHELLEY MOORE CAPITO, West Virginia MIKE ROSS, Arkansas
BILL SHUSTER, Pennsylvania BRAD CARSON, Oklahoma
ANIBAL ACEVEDO-VILA, Puerto Rico
Doug Thomas, Staff Director
Phil Eskeland, Deputy Staff Director
Michael Day, Minority Staff Director
------
Subcommittee on regulatory Reform and Oversight
MIKE PENCE, Indiana, Chairman
LARRY COMBEST, Texas ROBERT BRADY, Pennsylvania
SUE KELLY, New York BILL PASCRELL, Jr., New Jersey
SAM GRAVES, Missouri CHARLES GONZALEZ, Texas
ROSCOE BARTLETT, Maryland DAVID D. PHELPS, Illinois
TODD AKIN, Missouri JAMES P. LANGEVIN, Rhode Island
PAT TOOMEY, Pennsylvania ANIBAL ACEVEDO-VILA, Puerto Rico
Rosario Palmieri, Professional Staff Member
C O N T E N T S
Page
Hearing held on June 13, 2002.................................... 1
Witnesses
Nelson, Hon. Kim T., Assistant Administrator for Environmental
Information, U.S. Environmental Protection Agency.............. 4
McGuirk, Dennis, President, IPC, Association Connecting
Electronics Industries......................................... 15
Mallory, James, Executive Director, Non-Ferrous Founders' Society 17
Klinefelter, Nancy, President of Baltimore Glassware Decorators
representing the Society of Glass and Ceramic Decorators....... 18
Morrow, Hugh, President, North American Office, International
Cadmium Association............................................ 20
Appendix
Opening statements:
Pence, Hon. Mike............................................. 27
Prepared statements:
Nelson, Hon. Kim T........................................... 31
McGuirk, Dennis.............................................. 44
Mallory, James............................................... 60
Klinefelter, Nancy........................................... 73
Morrow, Hugh................................................. 77
Additional Information:
Submission by Thomas Sullivan, Office of Advocacy, SBA....... 83
Post Hearing Question and Answer submission.................. 101
HEARING ON THE TRI LEAD RULE: COSTS, COMPLIANCE, AND SCIENCE
----------
THURSDAY, JUNE 13, 2002
House of Representatives,
Committee on Small Business,
Subcommittee on Regulatory Reform and Oversight,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:07 a.m. in
room 2360, Rayburn House Office Building, Hon. Mike Pence
[Chairman of the Subcommittee] presiding.
Chairman Pence. This Subcommittee on Regulatory Reform and
Oversight of the House Committee on Small Business hearing
entitled ``The TRI Lead Rule: Costs, Compliance, and Science'',
is convened.
The Chair will recognize the gentleman from Pennsylvania
for some brief opening remarks after a few remarks of my own.
I wish to thank all of our witnesses for their attendance
today, but, most especially, the Environmental Protection
Agency and the representative who joins us here today, with
apologies for my tardiness. I am the victim this morning of
having one too many Subcommittees in my life and appreciate the
forbearance of our witnesses and my colleague from
Pennsylvania.
I want to begin by giving the EPA my congratulations this
morning. The threat of lead poisoning, especially to children,
has been dramatically reduced in our country. Much of that, I
would offer today, is due to the work of the good men and women
at the EPA and other agencies of the federal government.
Former Health and Human Services Secretary Donna Shalala
said in announcing the 1997 CDC results, ``These lower lead
levels for America's children constitute a public health
achievement of the first importance. For our children as a
whole, we have achieved average blood lead levels which would
have been considered impossible just a few decades ago.''
Governor Whitman's predecessor at the EPA had this to say.
``The ongoing reduction in blood lead levels is a great
American success story of environmental and public health
protection. Years of aggressive action against lead exposure,
particularly EPA's banning of lead in gasoline two decades ago,
are yielding a brighter future for our children,'' and indeed
they are.
The Center for Disease Control, in the same document, did
go on to note that the job of lead exposure reduction is not
complete, saying, ``There are still close to one million
children with a blood lead level that is associated with
adverse effects on children. In addition, the survey showed
that more than one-fifth of non-Hispanic black children living
in older homes had elevated blood lead levels. This pattern
reflects the most serious remaining sources of lead exposure;
deteriorating paint in older housing, dust and soil
contaminated by paint and residues from past emissions of
leaded gasoline.''
Beyond those accolades and the kind of affection that this
Chairman developed for the EPA when they spent three months
decontaminating my anthrax-contaminated office with great
professionalism and alacrity, I am disappointed today, though,
that we are not maximizing the benefits of this great
achievement. It seems we are not taking these results as a
lesson for further progress on this public health issue.
Today, we are not talking about further reductions of
children's exposure to lead in paint or other major remaining
sources of concern that have been identified. Today, we are
talking in this hearing about a paperwork regulation that will
at best provide some new information about the uses of lead
that present no real risk for human health at a significant
cost to small businesses and to the EPA. At worst, one could
argue, this rule will provide inaccurate information about lead
usage and divert important resources away from more pressing
public health and environmental needs.
I wish I had already completed a listing of the problems
with this rule. In addition to it not addressing the most
important public health aspects of lead and potentially
providing no public right-to-know benefit, this rule, for
instance, as we may well hear today, is based on questionable
science and lacks independent peer review.
It eliminates burden reduction measures meant to make TRI
reporting easier for small businesses, and it is the first
retroactively applied TRI reporting rule, which will require
companies to desperately search for data about lead usage prior
to when the rule was promulgated and became effective.
It suffers from an EPA guidance document that was not
available until 13 months after the retroactive date for data
collection and was 200 plus pages that, candidly, no small
business person, let alone any congressman, could decipher. It
subjects upwards of 10,000 new filers to burdensome reporting
obligations under an EPA rule that many may not even know about
yet.
It is virtually guaranteed to produce poor quality data
that will not well serve the public's right-to-know, creates a
risk of enforcement actions or citizen suits against small
businesses that may simply be unable to comply with the rule,
despite doing their best, and, finally, I assume, in
recognition of the questionable science underpinning this rule,
the EPA has decided to submit to a Science Advisory Board
review of the biggest questions, but is waiting three years
after the final rule is published for a final report on some of
these issues.
This is not the EPA's finest hour, I would argue, after a
great and I think colossal achievement in the reduction of lead
exposure to children in this country. It stands in stark
contrast to those reductions. This paperwork rule is also
estimated to cost businesses between $70 and $100 million in
the first year of implementation. When our economy is hardly at
its peak and small businesses account for a majority of job
growth in this country, it is not time right now for
substantial new regulatory costs of questionable benefits to be
imposed.
Now is the time to prioritize, time to focus all of our
efforts on the environmental regulations which will provide us
with the most bang for our buck, as we say in Indiana, with the
greatest impact on human health and the environment. This Chair
believes that this rule does not pass this test.
This hearing has garnered quite a bit of interest. In
addition to the witnesses gathered today, we also have
testimony submitted by the U.S. Small Business Administration,
the National Association of Manufacturers and the Meractus
Center. We look forward to the testimony of all of our
witnesses.
I would like to now recognize the Ranking Member, the
gentleman from Pennsylvania, Mr. Brady, for his opening
statement.
[Mr. Pence's statement may be found in the appendix.]
Mr. Brady. Thank you, Mr. Chairman. I am going to submit my
statement for the record rather than read it all, but I would
just like to also chime in and join in with your remarks about
the EPA and what they have done with their paint and the safety
of our children.
I come from the City of Philadelphia in the State of
Pennsylvania, which it is a great city, but it is an old city.
It has a lot of old houses and a lot of lead paint in a lot of
our areas, and they have done an excellent job. It has been
extremely helpful, and our children have been allowed to grow
up in some much better environments and better safety.
I also was thrilled to find that the Honorable Kim Nelson
is from the State of Pennsylvania, has been there for all her
life, and now in the City of Washington. Do not worry about
that. If you are from Pennsylvania, you have a great
background. You will do fine here. I look forward to hearing
your statement.
Thank you.
Chairman Pence. Before we begin receiving testimony from
witnesses, I want to remind everyone that we would like each
witness to keep their oral testimony to just five minutes, and
then in order the Chair and the Ranking Member and any other
Members that arrive will be given an opportunity to pose
questions thereafter.
As our first witness and no doubt veteran of Capitol Hill
knows, but our other witnesses may not be as aware, you have a
series of lights in front of you, and they mean just what
traffic lights mean. The Chair will allow a certain amount of
latitude once the red light appears, but then the gavel will
eventually arrive.
You should know that your entire written statement will,
without objection, be added to the record, so you might use the
opportunity of your remarks here to amplify points in your
written statement.
In our first panel we will hear from a single witness, the
Honorable Kim T. Nelson, who is the Assistant Administrator for
Environmental Information at the U.S. Environmental Protection
Agency.
Having just had a private meeting in my congressional
office with Secretary Whitman, I am grateful, despite our
frustrations with this rule, for the EPA's willingness to
attend this hearing, to participate in a dialogue with the
Small Business Subcommittee and am grateful for your
participation, even though you are from Pennsylvania.
Ms. Nelson is recognized for five minutes.
STATEMENT OF THE HONORABLE KIM T. NELSON, ASSISTANT
ADMINISTRATOR FOR ENVIRONMENTAL INFORMATION, U.S. ENVIRONMENTAL
PROTECTION AGENCY
Ms. Nelson. Thank you. I am struggling for some connection
I have with Indiana, but it is not coming to me at the moment.
Good morning, Congressman Pence and Congressman Brady.
First, Chairman Pence, let me apologize since I was not at that
meeting you had with Governor Whitman as I was out of town that
day, but I am glad it went well.
I do appreciate the opportunity to be here today to discuss
with you EPA's recent rule to expand the reporting on lead and
lead compounds under EPA's Toxic Release Inventory Program. As
you may recall, the new TRI lead rule was carefully reviewed by
this Administration upon entering office and was eventually
endorsed by the President and Governor Whitman and became
effective, as you stated, in April of 2001.
The new rule requires any facility which is already subject
to the Emergency Planning and Community Right-to-Know Act
reporting provisions that also manufactures, processes or uses
more than 100 pounds of lead or lead compounds annually to
report to EPA their lead releases. This rule significantly
expands the information available to the public about the
presence and releases of lead in their communities.
Since its implementation in 1987, the TRI has been the
centerpiece of EPA's right-to-know programs and has proven to
be a very powerful tool for assisting communities in protecting
their own environment and for making businesses more aware of
their chemical releases. The basis of the TRI lead rule is
EPA's determination that lead and lead compounds are
persistent, bioaccumulative and toxic chemicals. These are also
known as PBT chemicals.
These chemicals are of particular concern because they
remain in the environment for long periods of time, they build
up in the environment, and they accumulate in plants, animals
and humans and may cause a range of very serious toxic effects.
In assessing the persistence of lead, EPA concluded that
lead meets the PBT criterion for classification as highly
persistent. Because lead is a PBT chemical and it is highly
persistent, there is a greater potential for exposure to lead.
In assessing the bioaccumulation of lead, EPA considered
bioaccumulation data in aquatic plants, animals and humans. In
addition to the plant and animal data, there are extensive peer
reviewed human data demonstrating that repeated exposure to low
levels of lead results in a build up of lead in the bones of
the human body where it can remain for many years. Numerous
studies have shown that lead that has accumulated in bone can
later move from the bone to blood, especially during pregnancy,
breast feeding, menopause, old age, and serve as a source of
exposure.
The toxicity of lead to humans is well documented and
undisputed. Of particular concern is the effect lead has on
fetuses, infants and children because they tend to be more
susceptible to exposures of lead and are more sensitive to the
toxicity it causes. Their exposure to lead can cause permanent
brain damage. Even at the very low dose levels, exposure can
result in diminished IQ levels, impaired neurobehavioral
development, decreased stature and growth and impaired hearing.
During the public comment period for the proposed rule,
questions were raised challenging the sufficiency of the
aquatic data to support the conclusion that lead and lead
compounds are highly bioaccumulative. In addition, EPA
recognized that it did not clearly indicate in the proposed TRI
rule how the human data would be used to distinguish between
bioaccumulative and highly bioaccumulative categories.
Consequently, EPA determined that the data clearly supported a
finding that lead and lead compounds are bioaccumulative and
deferred on its determination as to whether lead and lead
compounds are highly bioaccumulative.
In the final lead rule, EPA stated that before determining
whether lead and lead compounds are bioaccumulative, EPA
believes that it would be appropriate to seek external
scientific peer review from its Science Advisory Board, and
EPA, as you mentioned, intends to do so. The date proposed for
the peer review of the highly bioaccumulative issues pertaining
to the lead rules is November, 2003.
This Administration believes that the preferred approach to
achieving compliance with new rules is emphasizing compliance
assistance during the first year rather than direct
enforcement. EPA has worked hard in providing compliance
assistance and outreach, especially for small businesses, for
this first reporting year deadline.
For example, EPA issued a technical guidance document to
assist facilities, as you mentioned, in complying with the new
lead rule. Also, in the fall of 2001, EPA sponsored nine
workshops specifically on the new lead rule. Both the workshops
and the availability of the draft and final versions of the
guidance document were extensively publicized.
In addition to these specific efforts, EPA continues to
work hard to provide compliance assistance for facilities
generally. For example, this spring EPA held more than 40
workshops. Also, EPA has many more TRI compliance assistance
resources and tools available through the internet and
telephone hotlines.
In conclusion, I would like to reiterate EPA's strong
commitment to providing public access to environmental
information and our firm belief that public access contributes
positively to our citizens' ability to understand environmental
issues and to make better decisions in their daily lives. An
informed public can hold government and industry accountable
for pollution control efforts.
Thank you, Mr. Chairman. Thank you, Congressman Brady. I
would be happy to take any questions.
[Ms. Nelson's statement may be found in the appendix.]
Chairman Pence. Thank you for that presentation. You
mentioned a couple of different areas, and I may hit a few
areas and then yield to Mr. Brady out of sensitivity to his
schedule this morning.
First, I want to reiterate that you are here speaking for
all of the EPA, including the Office of Enforcement and
Compliance Assurance, according to our information.
Ms. Nelson. That is correct.
Chairman Pence. You have described the EPA's policy as
stressing compliance rather than enforcement in the first year.
What does that specifically mean to a small business that is
covered under this rule?
Ms. Nelson. Let me say I am new to EPA. I have been here
since the fall, but I have spent 15 years in an environmental
protection agency in Pennsylvania.
Like the experience I had in Pennsylvania, I believe EPA
has a history, and particularly so now such as sensitivity,
that the agency has the ability to exercise complete discretion
over its enforcement actions.
What that means particularly when you are dealing with a
new program is that we recognize that the first year of a
program, even a second year, enforcement actions for a program
that is new tend to be very low on the enforcement priority
list.
Our emphasis is to bring facilities in compliance. I know
of no one in this agency who is planning on taking enforcement
actions against a facility where we show general goodwill in
terms of complying with the requirements of the law and the
regulations.
Chairman Pence. Does that mean zero enforcement actions in
the first year? If not, then when specifically would you choose
to use enforcement?
Ms. Nelson. Let me say, you know, we all understand
absolutes are something that can create problems in the long
run. It is clearly a low enforcement priority. This is, as you
mentioned, a paper reporting exercise.
Through this program, we are not asking people to implement
new control technologies. We are not asking people to change
effluent discharges or to limit effluent discharges in any way.
This is a reporting exercise which is geared towards providing
the agency and the American public with information.
Our goal will be to insure the highest quality of
information, and that is where we want to focus our resources.
I know of no one at this point in time that would see it
appropriate to take what we would consider an ``enforcement
action'' against someone who has filed inappropriately or
incorrectly or incorrect data.
Chairman Pence. The President has asked the EPA to provide
special assistance to small businesses----
Ms. Nelson. Yes.
Chairman Pence [continuing]. On this rule, tacitly
recognizing the burden that it imposes on business.
Ms. Nelson. Right.
Chairman Pence. What specifically did the EPA do to help
prepare small businesses to comply with this rule?
Ms. Nelson. The agency first last summer held nine sessions
throughout the country. Ten were scheduled, and, frankly, we
canceled the one session that was scheduled in Region 2 because
of the aftermath of September 11, but nine sessions were held
across the country with over 700 people attending.
Seven hundred people does not sound like a lot when you
talk about the numbers of facilities, potentially 5,000
facilities, give or take, that might be affected, but those
sessions are really assigned to be a train the trainer session,
to bring in the industry representatives, the consultants and
the others who actually provide support to industry. Seven
hundred people attended those sessions.
In addition to that, we held a number of public meetings
last summer on the guidance document. As you mentioned, it was
EPA's plan to get the guidance document out in October. The
meeting was held on September 10. We know we did not meet that
deadline because of the aftermath of the events on September
11.
We extended the deadline, however, because of those events
and because of certain concerns about the rule, which was one
of the reasons the guidance document got out late. We provided
more opportunity for public comment on the document. We could
have gotten it out earlier, but we would have shortened the
public comment input period.
This fall, we held our normal TRI sessions that had a
special focus, as they normally do, on the new reporting
requirements. Those sessions I believe totaled more than 40
throughout the country and were attended by thousands of
people, in excess of maybe 3,000 people.
We also have our hotline that is available for people to
call in any day on the document itself and the Q&As. It is,
from my perspective, one of the most aggressive outreach
programs EPA has ever done in the TRI program.
Chairman Pence. This is the first TRI rule to be applied
retroactively. I will say procedurally I want to see if I can
get an answer to this question, and then we will recess while
Mr. Brady and I go for what apparently will be about 20 minutes
of votes and be back.
The final rule was not effective until April, 2001. The
businesses are required to report releases starting January,
2001. EPA did not provide a final guidance document until the
end of January of this year. What is the justification for
applying this rule retroactively?
Ms. Nelson. Well, I guess we have to understand that the
rule became effective on April, 2001, but the reports are not
actually due until approximately 15 months later.
The justification for allowing a rule to go into effect in
April when reports are not due for another 15 months is the
fact that the TRI program has always allowed filers to estimate
their releases. It is not like other programs, our NPDS
program, for instance, where facilities have to submit monthly
discharge monitoring reports where those reports are based on
real monitoring of actual occurrences.
The TRI program has always allowed facilities to estimate,
so it is easy or it is possible, based on formulas, for a
facility to estimate their usage back for a period of a year.
Chairman Pence. The Chair will ask the assistant
administrator----
Ms. Nelson. Yes.
Chairman Pence [continuing]. If she can stay here. We will
return, I presume, by about ten minutes before the hour after a
series of votes.
With that, we are in recess.
[Recess.]
Chairman Pence. Kim Nelson, the Assistant Administrator for
Environmental Information at the U.S. Environmental Protection
Agency, is still with us. We are grateful for your patience and
everyone else's patience. We do not anticipate another
interruption prior to the end of the hearing.
The Chair has a great number of questions, but, in the
interest of his time and schedule, wanted to yield to the
gentleman from Pennsylvania, the Ranking Member, for any
questions that he might have for our witness.
Mr. Brady. Thank you, Mr. Chairman. I just have one that I
do not understand.
What is the difference between the TRI Form A as to the one
that we have now that is less burdensome? Do you know?
Ms. Nelson. The TRI Form A was a burden reduction effort
that requires less information to be filed by a facility versus
the full Form R.
Mr. Brady. Was there a problem with that one, I mean, that
it had to be changed to make it more burdensome? I mean, we are
trying to make things less burdensome for small business.
Ms. Nelson. The Form A came after I believe the Form R. but
I was not here at that particular time. I can get back to you
on that particular sequence of events.
Mr. Brady. Okay. Thanks.
No more questions, Mr. Chairman.
Chairman Pence. Ms. Nelson, let me take a little different
tact with the questions for the moment. I am going to read some
statements from your confirmation hearing for the record and
then ask you a couple of specific questions.
In your confirmation hearing, you said, quoting now, ``The
information that we provide must be of exceptional quality,
supported with analytical tools which facilitate its use for
assessing and managing risk and measuring environmental
improvements.''
You also said that it would be your intention to assist
Administrator Whitman by helping to ``sharpen the focus of the
EPA's environmental information strategies, reduce burden on
industries, promote intergovernmental cooperation and apply
best practices to achieve internal efficiencies.''
You also said, ``I believe these activities will contribute
significantly toward burden reduction, improved data quality
and security, more informed environmental decision making and
greater flexibility to manage environmental programs.''
In light of the extensive evidence that without more time
to get it right implementing this rule on June 30, 2002, will
result, to put it bluntly, in extremely poor quality data, does
this rule meet the goals expressed in your confirmation hearing
for data quality and the right relationship between the EPA and
small business America?
Ms. Nelson. I still believe everything I said on that day
when I testified, which was October 17 of last fall.
This program I think has to be treated a little bit
differently, as I mentioned before, from other programs in EPA.
This program is not one where we are making individual, site
specific risk assessment kinds of decisions.
What is important about the TRI program is that it provides
the agency with an opportunity to collect information that it
and others in the community and businesses can use hopefully to
make better environmental decisions. We recognize that I think
in any program the first year is not going to be the highest
performing year; that it always takes some experience under our
belts to get to the level of high performance we would all like
to see.
I think there are a number of things we are doing in the
TRI program that can help improve the quality of the data,
which is the ultimate goal that we all have, and reduce the
burden. For instance, my primary focus with the TRI program is
to focus on improved electronic reporting. The one thing we
know as we move towards e-government is that the more we can
get facilities and others to report electronically, the higher
the quality of the data will be.
I do not know if you have used something like Turbo Tax
before, but you know a software program like that, as we have
with the newest versions of the TRI report, can help you
calculate your answers and insure that the data submitted are
accurate. It actually prevents you sometimes from putting in
incorrect data, which often happens on the paper forms.
Somebody gets a factor wrong by ten or more. We see an outlier
way out here, and we recognize that cannot possibly be correct.
The more you can do electronic reporting, the more you can
prevent that from happening, so that is my focus. With my goals
of higher quality data and burden reduction, we can actually
reduce that burden on companies if they begin to submit
electronically because we can make it easier for them to
submit, and we can get higher quality data.
Chairman Pence. Let me change gears, if I can, to the whole
issue of science and ask you first to maybe express what is
your view of science at the EPA? Maybe more accurately, how
should science inform policy at the EPA? Should it be
controlling? Is it a factor in the development of environmental
policy?
Ms. Nelson. As we look to new issues, there is one thing
that I clearly have recognized the last couple years, and that
is the issues we are going to face from an environmental
protection perspective, regardless of where we sit in an
organization, are issues that are getting far more complex.
The low hanging fruit, I think we can all agree, has been
picked, so the issue we are faced with in the future will be of
incredible complexity for many different reasons--impacts on
communities, impacts on the regulated community, on people, as
well as the science.
Governor Whitman I think has elevated in terms of stature
within the organization the Office of Research and Development.
Paul Gilman, Dr. Gilman, who is the assistant administrator for
that particular office, has recently been named by her as her
science advisor for the organization, and I think any good
policy coming out of EPA is a policy that has to be based on
teamwork across the organization. That teamwork includes the
Office of Research and Development to insure that all of our
decisions are based on sound science.
Chairman Pence. So your view would be that all policy has
to be based on teamwork and that essentially the researchers
are part of that team. The science is a factor in the
development of policy, but is it fair to say it should be the
dominant factor in the development of policy?
Ms. Nelson. I do not think it can be because we have
statutory and legislative requirements, so I do not think in
any given situation or across the board you can make a
statement that science has to be the dominant factor. I would
not say that now.
I think in any given situation we have to balance and we
have to look at all the particular drivers in any given
situation. Some of them are statutory. Some of them are
economic. Some of them are social. Some of them are science. It
is our job as appointees there and as employees of the
Environmental Protection Agency to balance those issues.
Chairman Pence. Let me read you a quote from Governor
Whitman in her confirmationhearing, which may be at odds with
your prior statement. She said, ``Scientific analysis should drive
policy. Neither policy nor politics should drive scientific results.
Good science is the basis for all the decisions that are made at the
agency that is critical to the credibility of the agency and the
implementation of the decisions made by the agency.''
Again, her initial statement is there. ``Scientific
analysis should drive policy.'' Do you think that is a practice
at the EPA, in your judgment?
Ms. Nelson. Well, that is what the governor said, and that
is what I said in my first statement that the governor believes
strongly in sound science. I believe she had heightened the
visibility of the Office of Research and Development in
appointing Dr. Gilman as her science advisor, and I believe we
all within the organization have to make decisions based on
sound science.
I do think that is the practice, yes, that we are all
expected to abide by, but it is not the only one. We have to
take other things into consideration.
Chairman Pence. Let me see if I can get a quick yes or no
on a series of questions, and then we can wrap up at least the
Chair's portion of questions.
Number one, are you aware the EPA co-sponsored a workshop
in January of 2000 on whether it was appropriate for metals to
be considered as PBTs?
Ms. Nelson. I was not here at the time. I am aware that
that did occur, yes.
Chairman Pence. Okay. Are you aware that questions at that
time were raised about the very characterization of lead as a
PBT chemical in interagency reviews?
Ms. Nelson. I am aware there was discussion of that issue.
Chairman Pence. Are you aware that the Small Business
Administration, in its search, has yet to find any peer
reviewed literature, journals or reports or scientists from
government, industry or academia to support EPA's
characterization of lead as a PBT?
Ms. Nelson. I am not aware of that.
Chairman Pence. How about the fact that bipartisan
leadership on the House Science Committee has requested SAB
review of this issue and that the Committee has statutory
authority to require SAB review?
Ms. Nelson. I am sorry. Could you repeat that?
Chairman Pence. Are you aware that the House Science
Committee has requested an SAB review of this issue in
particular?
Ms. Nelson. I know prior to my coming here there was
dialogue and discussion between various Members of Congress,
but I am not sure of what you are specifically referring to.
If it is an earlier request that came out of the VA HUD
appropriation a year or so ago, my understanding was we were
urged to look at the issue and that as a result of some
dialogue and discussion there was an agreement on an approach.
Chairman Pence. Are you aware that the Small Business
Administration, the Office of Science and Technology Policy,
the Office of Management and Budget and the Department of
Energy are all on record supporting peer review on the
fundamental science question behind EPA's rule?
Ms. Nelson. I am aware this issue has been discussed by a
number of organizations.
Chairman Pence. Okay. Well, then let me ask. Is the
question of whether or not lead or other metals are
appropriately characterized as PBTs under this rule currently
before the SAB, or will it be?
Ms. Nelson. The issue that we are putting before the SAB is
whether lead and lead compounds are highly bioaccumulative. The
agency has already made the decision that lead is considered a
PBT, so that issue is not before the SAB. The issue before the
SAB is whether lead should be considered and lead compounds
highly bioaccumulative.
Chairman Pence. So again, and I appreciate your clarity----
Ms. Nelson. Let me just say this. My understanding is also
that issue is not before the SAB right now, but will be
submitted to the SAB once the SAB reviews the action plan and
the ultimate framework.
Once that framework has been reviewed by the SAB, then it
is the intent to put the question before the SAB as to the
highly bioaccumulative nature of lead and lead compounds.
Chairman Pence. Maybe that explains it. In your written
testimony you quote from the Federal Register notice of the
final TRI lead rule in saying that, ``The external peer review
would address the question of whether lead or lead compounds
should be classified as highly bioaccumulative.'' ``The
external peer review,'' and I am reading your testimony now,
``would address the issue of how lead and other as yet
unclassified metals such as cadmium should be evaluated using
the PBT chemical framework, including the types of data and
which species are most suitable for those determinations.''
It is the last sentence I want to focus on. What is your
understanding of that last sentence, and when will that
question be before the Science Advisory Board?
Ms. Nelson. The schedule for the Science Advisory Board is
that they will have the draft framework to review by June of
2003.
The draft guidance and issues based on that framework
regarding the TRI lead rule and the highly bioaccumulative
nature, whether lead and lead compounds are highly
bioaccumulative, would be presented to the SAB in November of
2003 with the expectation that the SAB would release a report
in March of 2004. That is based on the action plan that was
recently published.
Chairman Pence. Would that not represent the underpinning
of this rule? It seems like, as we say in Indiana, we are
putting the cart before the horse.
Ms. Nelson. I think at that point in time it would
certainly be incumbent, based on the answers that come out of
the SAB, for the program to evaluate the decisions and the
implications on all of our current programs. I think it is also
premature to change anything we are doing without that
recommendation coming from the SAB.
Chairman Pence. The Small Business Administration, and
maybe we could have staff get this to you. The Small Business
Administration has submitted written testimony----
Ms. Nelson. Okay.
Chairman Pence [continuing]. For this hearing. They have
shared with us some statements by scientists and other
organizations that contradict your evaluation of the rule.
I am going to read to you some of these statements and try
and get a reaction from you, and then we will wrap up and allow
the Ranking Member to ask any follow up questions, and then we
will move to our second panel. I will ask you to tell me if you
think they support EPA's case or if they do not support EPA's
case on the science behind this rule would be my main focus.
March 23, 1995, Great Lakes Water Quality Guidelines,
``EPA's final rule establishing water quality guidelines for
the Great Lakes examined whether ten metals, including lead,
were bioaccumulative substances and found that none exceeded
the BCF of 1,000, which is used as a cutoff. EPA is now
apparently using the same set of pre-1995 data and found that
BCF for lead exceeds at least 1,000.''
Do you think that supports the EPA's case or does not
support their case on the science behind the rule?
Ms. Nelson. Well, I think you have to be careful when you
take a statement like this out of context that was intended for
a specific situation.
The data that were used here are different data than we use
for TRI, so I think it is inappropriate for me to suggest that
it does or does not support our case. It is a completely
different set of data for a different purpose and used in a
different context.
Chairman Pence. The Science Advisory Board report in May of
2000 was a draft case study analysis of the residual risk of
secondary lead smelters. The quote is, ``The classification of
metals as PBTs is problematic since their environmental fate in
transport cannot be adequately described using models for
organic contaminants.''
Without again confronting you with the same repetitive
question about whether it supports EPA's case or not, and this
is where I want to go with the next panel, but is there a sense
within the EPA that this whole business of PBT chemicals was
established around the idea of chemical agents like pesticides
that are introduced into the environment, and now it seems like
this classification has grown into even natural minerals like
lead.
We can go through all of these, but all of them
consistently challenge the very classification of lead and
certain metallurgical natural minerals as PBTs. Is there any
willingness at the EPA to deeply rethink the whole move into
minerals like lead as PBT chemicals?
Ms. Nelson. I think when we take issues like this in sort
of chronological order and look at the history of PBT, we can
see that these issues were dealt with, as the first one with
the Great Lakes, for different purposes, for smaller audiences.
The most recent one you referred to with the Science
Advisory Board and the lead smelters, my recollection is that
analysis by the SAB was dealing primarily with different models
that the agency uses and different risk assessment methods.
Again I would go back to the purpose of the TRI program.
The TRI program is not a site specific program. The TRI program
is not a risk assessment program. The TRI program is one in
which we collect information that we can all use in government
and outside of government hopefully in the future to make
sounder decisions.
The PBT criteria that EPA published back in 1999 and the
methodology was published as a rule, and we did receive comment
on that rule. It became final. That methodology for applying
the PBT criteria to chemicals was published as a rule. In that
rule making, EPA did clearly state that it would apply to
chemicals, not just certain chemicals, and in fact made a
statement that it would apply to metals. This is an issue that
EPA clearly stated several years ago.
While, like many issues, I believe there are different
opinions, we have some statements here where people disagree
with the use of PBT criteria. I think we could find an equal
number of statements where people believe it is indeed very
appropriate to apply the PBT criteria to metals.
One of the things we will all learn when the framework goes
to the SAB is what they have to say about the issue. EPA
believes it is entirely appropriate to apply PBT criteria to
metals. What I think is important about the approach we are
taking now is that with the administrator and with Linda Fisher
we have leadership in the organization that recognizes you can
often have what appear to be inconsistencies because every
program has a different set of regulatory and statutory
requirements.
I have been in government for 22 years. I have yet to find
organizations that tend to be more diverse than environmental
agencies with air programs, water programs, hazardous waste
programs, radon programs. What I think we all know is that
those individual silos often cause concern to people who are on
the outside because they look at each individual program taking
different actions.
The framework that we are looking for under Governor
Whitman's leadership will help provide an overall framework for
programs within EPA to take that framework and apply it to
their individual situations because they still will have very
different needs and situations as a result of their statutory
and regulatory requirements.
Chairman Pence. I am sure we cannot resolve this here
today, but it seems to me that by your testimony today that the
larger question is before the SAB, that it seems to me that
this rule should be delayed until questions are answered from
the science, from the people who are charged with determining
the appropriate science.
Candidly, and I would ask you to convey back to Governor
Whitman and to your colleagues at the EPA, I am just not
prepared to sacrifice small businesses on a hunch that the EPA
might be correct on major scientific questions related to this
area.
There are conflicting facts, and we will hear more
testimony today, but it appears that there is from my
perspective overwhelming scientific consensus against EPA's
view of this rule. If this qualifies as an occasion where, as
Governor Whitman said, science should drive policy and not the
other way around, then I am convinced that we will have a
different outcome at the end of this process, and I am
certainly convinced that we should.
Let me say, Ms. Nelson, we want to thank you for your
testimony today. We are going to leave the record open so that
we can submit some additional questions to you in writing and
would appreciate if you can respond before the implementation
date of this rule.
Ms. Nelson. Sure.
Chairman Pence. Of course, any additional comments from you
will be added to the record without objection.
With that, I will recognize the gentleman from Pennsylvania
if he has additional questions.
Mr. Brady. I am fine. Thank you.
Chairman Pence. If there is nothing further, the witness is
dismissed with our gratitude.
Ms. Nelson. Thank you very much.
Chairman Pence. This hearing on the TRI Lead Rule: Costs,
Compliance, and Science, will continue. Next, the Subcommittee
will hear from a very distinguished panel.
Having heard from the EPA, and I believe most of you were
in the room for most of that testimony, and, candidly, this
panel I know would be grateful if you were to illuminate or
respond to things you may have heard today. If our records are
correct, things the EPA may have said for the first time on
this issue were said in this hearing today. We would be anxious
to know your reaction to those.
First, the Subcommittee will hear from Dennis McGuirk.
Before I introduce him, I will remind you of the lights. Do not
feel married to your written testimony. Those of you that are
experienced at doing this know that we will enter your written
testimony into the record without objection, and it is often
more helpful for the Members if you will amplify the points
that you want to make sure we make, as well as the requests
that are made.
When you see the red light, try and wrap up your comments
as quickly as possible. We will await questions until all of
you have given your testimony and opening statements.
Dennis McGuirk is president of the IPC, the Association
Connecting Electronics Industries. Mr. McGuirk's previous
service includes over 24 years of active duty service in the
United States Air Force. He holds degrees in Western European
Affairs from the U.S. Air Force Academy and a Master's in
Public Administration from the University of Colorado and is
recognized for five minutes.
STATEMENT OF DENNIS MCGUIRK, PRESIDENT, IPC, ASSOCIATION
CONNECTING ELECTRONICS INDUSTRIES
Mr. McGuirk. Thank you, and good morning, Chairman Pence
and Congressman Brady. I am the president of IPC, a trade
association representing the electronic interconnection
industries.
IPC's 2,500 members manufacture and assemble printed
circuit boards, the backbone of our nation's high tech
industries, including consumer, industrial and defense
electronics. While some of our members are very large
corporations, 60 percent of IPC members are small businesses.
On behalf of the IPC and our member companies, I would like to
thank you and your staff for organizing this important hearing.
As we have heard, EPA's TRI rule lowered the reporting
threshold for lead and lead compounds from 25,000 pounds--that
is over 12 tons of lead--down to just 100 pounds. The
regulation took effect on April 17, 2001, and included the
unprecedented retroactive application of the reporting
requirements to January 1, 2001.
IPC members, along with many other industries, are
concerned that the burden of this rule upon business has been
significantly underestimated, and EPA has failed to provide
effective compliance assistance, thereby further increasing the
burdens on those least able to bear it.
During the development of the rule, EPA chose not to
convene an advocacy review panel as required under the Small
Business Regulatory Enforcement and Fairness Act, deciding
instead to certify the proposed and final rules as having no
significant economic impacts on businesses. Early outreach to
small businesses could have helped EPA determine the number of
small companies that would be significantly impacted by this
rule.
Compliance with the lower reporting threshold also imposes
a significant burden on IPC members. For a small business, the
job of interpreting, and complying with the agency's
instructions and guidance for TRI is substantial. To give you
an idea of what I am talking about, we have already alluded to
the mass amount of documents required. Before me I have the 746
pages of reporting forms, instructions and guidelines needed to
fill out the TRI forms.
EPA's own estimates shows the cost of the compliance for
the new reporters under TRI would be about $7,000 for the first
year alone. We believe this grossly underestimates the actual
cost, but, in any event, it is a significant amount for an
industry that is going through decreasing consumer prices.
During the time the rule was under consideration and after
its adoption, many concerns were raised about the enormous
burdens it would impose. We were pleased back in April of 2001
when President Bush recognized this problem and directed EPA to
help small businesses. In a May, 2001 letter to 71 concerned
trade associations, EPA reiterated this point by promising to
help reduce the burdens imposed on small businesses by
developing final guidance by October, 2001.
As we have said, unfortunately EPA did not finalize the
guidance until January of 2002, after the entire first
reporting year had passed. The guidance is long, it is
confusing, and often times it is conflicting.
In February of this year, IPC e-mailed 17 questions about
the guidance document to EPA so that we could provide accurate
assistance to our members. EPA took four months to respond to
our e-mails, leaving IPC less than three weeks to respond back
to our members with their appropriate guidance. The deadline,
as I am sure you have heard, is June 30 of this year.
On February 22, 2002, 43 trade associations wrote the EPA
asking for a one year delay of the reporting requirements so
that they could work with them to insure the collection of
accurate data without undue burden on small businesses. The
need for this delay is supported by EPA's own words.
In response to a comment pointing out the confusion
generated by EPA's inaccurate, out-of-date question and answer
document, EPA states, ``The TRI program can only update this
guidance document once every several years.'' If EPA is unable
to update the key guidance documents for such a significant
rule, it should also delay the implementation until it is able
to provide accurate guidance and compliance assistance.
Last month, a group of 30 trade associations met with EPA
to further discuss concerns regarding the implementation of the
rule and the need for the one year reporting delay. During the
meeting, EPA acknowledged that there had been problems with the
implementation, but noted that the first year, as we have
heard, always serves as a road test. That may be EPA's
perspective on the problem, but it is not shared by thousands
of small businesses that will become the accident victims as
EPA takes its test drive.
Moreover, such a cavalier disregard of major problems
identified by small business suggest that they are at the risk
of becoming the road kill of EPA's road test. This is in direct
conflict with the intentions of the Small Business Regulatory
Enforcement and Fairness Act.
Mr. Chairman, IPC members take their responsibility to
environmental stewardship seriously. As small business owners,
they and their families live, work and play in the communities
where their businesses operate. Unfortunately, many of them are
unable to fulfill their obligations to provide accurate
information under the TRI program due to the lack of available
information, inadequate outreach and assistance, and the
impossibility of compiling data retroactively.
The environment and our public health depend upon good
environmental information. America's families cannot benefit
from the TRI program if EPA does not insure that small
businesses have the tools to provide accurate information.
In conclusion, I ask you to consider whether it is
reasonable to require thousands of small businesses to incur
substantial regulatory burdens when EPA currently has underway
a peer review of the very scientific framework upon which this
expensive and burdensome regulation is based.
We believe that in the interest of good science and good
data, EPA should suspend or otherwise delay the reporting
thresholds for lead until small business concerns can be
addressed properly and the results of EPA's Science Advisory
Board's review can be completed and assessed.
Thank you, Mr. Chairman, for giving IPC and its members the
opportunity to express our concerns, and I will await questions
at the conclusion of this panel.
[Mr. McGuirk's statement may be found in the appendix.]
Chairman Pence. Thank you, Mr. McGuirk.
The Subcommittee will now hear from Jim Mallory, the
Executive Director of the Non-Ferrous Founder's Society. He is
a board member of the American Metal Casting Consortium and
serves on an EPA compliance assistance advisory committee.
We are grateful for his time and attendance. Mr. Mallory is
recognized for five minutes.
STATEMENT OF JAMES MALLORY, EXECUTIVE DIRECTOR, NON-FERROUS
FOUNDERS' SOCIETY
Mr. Mallory. Thank you, Mr. Chairman. Good morning, and
good morning, Congressman Brady. I am very pleased to appear
here this morning representing aluminum and brass and bronze
foundries.
I will let the importance of my industry be noted in the
written comments that I have submitted, but let me just say
that most of the people I am here to represent this morning are
in fact small businesses. More than 50 percent of the non-
ferrous foundry industry employs fewer than 50 people. Most are
family run businesses.
Almost all of them are privately held, and in most cases in
most foundries the person who is responsible for EPA reporting
compliance is not a specialist or consultant, but is in fact
the owner of the company, a family member or another principal
executive of the company.
Non-ferrous foundries have several specific problems in
compliance with the new TRI reporting requirements. If I can, I
would like to use my time this morning to just summarize
briefly the written comments that delineate those problems.
First of all, EPA's new TRI reporting rule has eliminated
the de minimis exemption for TRI reporting. This fact alone
will subject a number of non-ferrous foundries to the burdens
of TRI reporting for the first time. Under the previous TRI
rules, many of those companies fell within the purview of the
de minimis exemption and, therefore, were exempt from the
reporting requirement, but the burden and the elimination of
the de minimis exemption occurs in that many foundries hold
other state and federal permits that do not or shall I say that
impose additional requirements once a company becomes subject
to TRI reporting.
For example, NPDES storm water permitting requires
companies that are subject to TRI reporting to do the actual
outflow of source reporting under their storm water permitting
rules, so if you can imagine for a moment that you are a small
business owner, it is Saturday night, it is raining and you are
standing in your parking lot measuring the outflow of rainwater
only because you have now become subject to the TRI reporting
rule for lead.
I think EPA ignored the domino effect that requiring a
number of small businesses who have not previously been
required to report to do so would have on the burdens that
would be imposed.
Secondly, TRI is not supposed to require facilities to
generate new data or to do additional research. We have heard
this morning that TRI allows people to use an estimate. The
problem that most non-ferrous foundries have, and a lot of them
aluminum foundries, is that there is no reliable source of data
for the content of lead in the materials that they use,
particularly in aluminum. I do not know if EPA was even aware
that commercial aluminum alloys contain lead.
I have brought with me this morning a publication that we
produced that lists all of the chemical specifications for
aluminum alloys. There are 80 pages with two alloys on a page.
Not one of those alloys indicates the amount of lead present in
an aluminum alloy, typically only in trace elements, but the
TRI reporting rule is going to require foundries to estimate
the amount of lead in those alloys. Most aluminum foundries do
not just pour one alloy. They may pour several dozen different
alloys depending upon customer requirements.
Aluminum foundries are also, I think, somewhat arbitrarily
subjected to this reporting requirement because within the TRI
rule brass and bronze alloys and stainless steel alloys are
exempt from inclusion in determining the threshold limit of the
lead that they contain, even though the lead in those alloys
exists in far higher quantities than it does in aluminum.
I think EPA was ignorant of the fact that aluminum alloys
contain lead, and I think that at a minimum the aluminum alloys
should have received the same exemption that was accorded to
brass and bronze and stainless steel.
Lastly, to summarize my industry's problems with the rule,
is the question of outreach. Most aluminum foundries, as I said
before, have never had to file TRI reporting forms previously.
Most were not sent copies of EPA's reports, were not informed
of the hearings or the workshops that were being held on TRI
reporting, did not receive copies of the guidance document and,
frankly, even at this late date may be largely unaware of the
fact that they are now subject to the reporting requirements
for lead under the new TRI rule.
Mr. Chairman and Mr. Congressman, I appreciate the
opportunity to be here this morning, and I await questions at
the conclusion of this panel.
[Mr. Mallory's statement may be found in the appendix.]
Chairman Pence. The Chair will now recognize a small
business owner from Baltimore, Maryland, Nancy Klinefelter.
Ms. Klinefelter. Correct.
Chairman Pence. Ms. Klinefelter is president of Baltimore
Glassware Decorators and also serves as a member of the board
of the Society of Glass and Ceramic Decorators.
As in the case of our last witness, we are especially
grateful to be hearing from, for lack of a better term, ground
zero of this type of a rule where it hits. I appreciated the
passion of our last witness and recognize you for five minutes
hopefully of the same.
STATEMENT OF NANCY KLINEFELTER, PRESIDENT, BALTIMORE GLASSWARE
DECORATORS, FOR THE SOCIETY OF GLASS AND CERAMIC DECORATORS
Ms. Klinefelter. Thank you. I really appreciate the
opportunity to be here today. Of course, you understand I am
president of Baltimore Glassware Decorators, and it is a family
operated business. Actually, my father has helped in growing
the business, and he has been in this business for over 50
years.
We are a wholesale decorator, and we specialize in printing
small quantities of custom glass and ceramic ware for special
events, restaurants and for souvenir and novelty stores. As you
see here in front of me, we do a number of glass and ceramic
items for different government agencies.
When we print mugs or glasses for our customers, we
sometimes use lead bearing colors on outside surfaces. These
colors become part of the glass after they are fired. These
colors are expensive, and we only use what is needed to print
each job, so very little ends up as waste.
I am testifying today to point out major problems with
EPA's new toxic release inventory lead rule. The greatest
problem for my company, as well as other decorators, is the
fact that EPA issued the rule April 17, 2001, and yet we are
required to accurately report or account for lead usage from
January 1, 2001.
For my company, it is impossible to compile precise lead
use records as required by EPA unless we track our color use on
a daily basis. Since every color contains a different amount of
lead, we must make different calculations for each color used.
Companies such as mine cannot simply throw a switch and
start to comply with the major environmental reporting rule
overnight. Even when we were notified by SGCD that the rule had
been imposed, we had no idea what it meant for the company. By
the time we were able to review the reporting requirements and
attend an SGCD seminar on the subject, half the reporting year
had passed.
As we began to compile the data, problems emerged. We buy
decals from small decal printers. They have fewer than ten
employees, yet these companies have to provide me with lead
contentinformation so we can put it on the TRI report. These
decal printers have no way of telling us how much lead is in each
decal. We are still wrestling with this one, and the deadline is
looming.
We have no experience at all with TRI. Our lead usage is
minimal. We were never anywhere near the previous 10,000 pound
annual reporting threshold. Now we do estimate that we exceed
the new 100 pound threshold, although just barely. Please note
that this is a usage threshold, not an emissions threshold, as
many in the media and others have indicated. We almost have
zero emissions.
For my company and every other small decorating shop, the
most critical part of TRI compliance is tracking the lead
usage. I do not know why EPA felt the need to make this a
retroactive rule. It would seem only reasonable to issue rules
in advance of when they must be applied, and that should have
meant a January 1, 2002, start date. That would have given us
adequate time to put a color tracking system in place. Would
EPA not rather have accurate data than my best guess?
It is not as though EPA usually issues rules this way. This
is the first time in the history of the TRI program that EPA
has imposed a retroactive reporting requirement, which we heard
earlier. I know that EPA publishes estimates that say it will
take 124 hours to track lead usage and complete TRI paperwork.
That is already quite a large number, but it is a gross
underestimate.
I have spent already 95 hours trying to understand and read
the TRI forms and requirements. I am still nowhere near the
point where I can complete the forms with confidence. In
addition, I have spent an additional 60 hours or more trying to
reconstruct retroactive color usage data. We are now spending
about four to five hours a week tracking lead usage. Like I
said, we only have 15 employees. I do not have any
environmental engineers, and I do not employ any, so the
responsibility is mine.
The time taken to reconstruct color usage data is time that
is not spent managing my company or looking for new business.
As we know, EPA has scads of paperwork you have to read. It is
confusing. It provides little help in defining the calculations
to determine the lead content of each color. The Try-Me
software has been equally disappointing.
In conclusion, I urge the Committee to ask EPA to postpone
the TRI lead rule for one year to enable me and other small
businesses to provide reliable and accurate information on our
lead use. There is no other way for EPA to address my problems
short of using a time machine to take us back to January 1,
2001.
I thank you for your interest and the concerns of a small
business such as mine and for the opportunity to testify here
before you today.
[Ms. Klinefelter's statement may be found in the appendix.]
Chairman Pence. Thank you, Ms. Klinefelter.
Our final witness is Hugh Morrow, president of the North
American office of the International Cadmium Association. His
previous services includes time at the Westinghouse Bettis
Atomic Power Laboratory in Pittsburgh, IIT Research Institute
in Chicago and the Zinc Institute.
He holds five patents related to high temperature alloys
and cutting tool materials, has authored approximately 100
publications and presentations mostly on cadmium zinc, received
his undergraduate and graduate degrees in Metallurgy and
Materials Sciences from MIT.
We are grateful to have his expertise to close our panel
today. Mr. Morrow is recognized for five minutes.
STATEMENT OF HUGH MORROW, PRESIDENT, NORTH AMERICAN OFFICE,
INTERNATIONAL CADMIUM ASSOCIATION
Mr. Morrow. Thank you, Chairman Pence and Congressman
Brady. As the Chairman mentioned, I am the president of the
North American office of the International Cadmium Association,
which is an association of organizations and companies
producing, using and recycling cadmium, both here in the United
States and throughout the world.
Cadmium is a key component of a number of important
commercial and consumer products, including rechargeable and
recyclable nickel cadmium batteries, which are used in cordless
power tools and telephones, aircraft and railway applications,
emergency lighting, and in remote area telecommunications.
I appreciate the opportunity this morning to testify on the
science aspects of the TRI lead rule that is the subject of
this hearing. The scientific premise for this rule is that
metals generally and lead and lead compounds in particular can
appropriately be classified as persistent bioaccumulative and
toxic or PBT chemicals using a methodology that was developed
for application to pesticides and other synthetic organic
compounds.
For more than three years, I have been involved, along with
numerous academics and representatives of all the major metal
sectors, including copper, zinc, nickel and lead, as well as
cadmium, in expressing scientific concerns with EPA's plan to
apply its PBT methodology to metals.
Those concerns are grounded in a solid body of peer
reviewed scientific literature and the conclusions of
international scientific experts that it is scientifically
inappropriate to use the PBT criteria relied upon by EPA in
order to asses the potential health and environmental hazards
of metals.
Enough concerns had been expressed, as the Chairman
previous mentioned, by January of 2000 that EPA co-sponsored
with industry an experts' workshop entitled ``Review of the
State-of-the-Science Regarding PBT Concepts and Metals and
Metal Compounds.'' The sessions of the workshop highlighted
fundamental scientific problems with EPA's approach which
industry hoped EPA would reconsider in the context of the TRI
lead rule.
It also became clear at the experts' workshop that no
independent scientific peer review had been conducted of EPA's
plan to apply the PBT criteria to metals, a serious deficiency
that should not have been allowed to occur.
These issues led the House Science Committee in a
bipartisan letter signed by both the Committee and Subcommittee
Chairmen and Ranking Members to write to EPA in July of 2000
noting that, ``Questions have arisen regarding the scientific
validity of applying the PBT criteria to metals and inorganic
metal compounds and that this specific issue has not received
the benefit of Science Advisory Board or other independent
scientific peer review.''
They went on to say, ``We strongly encourage EPA as soon as
possible to refer for SAB review the issue of the scientific
soundness of applying PBT concepts to metals,'' and a copy of
that letter from the Science Committee is attached.
Again, in November of 2000 when EPA had still not sought
peer review, these concerns were echoed by the new Chairman of
the Committee, Congressman Sherry Boehlert, who urged EPA, ``To
charge the SAB to undertake a broad review of the use of PBT,
which would include the applicability of PBT to all metals and
inorganic metal compounds as to which questions have arisen.''
Again, a copy of that letter is attached to my testimony.
The reasons for these concerns stem from the fact that PBT
concepts were developed to assess hazard in synthetic organic
compounds and do not work well, if at all, when applied to
metalsand inorganic metals compounds. In critical ways, metals
are fundamentally different from organics.
Persistence, for example, may be a useful criterion for
distinguishing among organic chemicals in terms of hazard, but
all metals are deemed infinitely persistent under EPA's
approach because, as naturally occurring elements, they cannot
be destroyed. As we all learned in high school chemistry,
elements are neither created nor destroyed and, therefore, are
infinitely persistent.
But, unless they are in a bioavailable form, this so-called
``persistence'' is not an indicator of environmental hazard. As
applied by EPA, it is not a meaningful measure of hazard in
metals. Moreover, since all metals are considered equally
persistent under EPA's approach, persistence provides no basis
for distinguishing among metals in terms of hazard.
In the same way, unlike the situation with organic
chemicals, bioaccumulation or bioconcentration factors, which
are commonly known as BAFs or BCFs, are not intrinsic
properties of metals and do not provide useful indicators of
hazard for them.
In fact, there is strong evidence that a high BAF or BCF
value for a metal would most likely indicate a lower risk of
toxicity, the very opposite result from what EPA's PBT
methodology assumes for organic chemicals and a very good
reason why we would not want to use this approach to try and
identify metals of greater concern.
I am now happy to report that EPA has recognized the
importance of these issues. In February, 2002, they announced
that they were embarking on the development of a comprehensive
cross-agency guidance for assessing the hazards and risks of
metals and metals compounds and that the goal of this cross-
agency guidance will be to articulate a consistent approach for
assessing the hazards and risks of metals and metal compounds
based on application of all available data to a uniform and
expanded characterization framework.
Since February, the work has moved forward, and an SAB
review schedule was recently announced that is expected to
conclude by the end of 2003. Just last week, in a June 6
notice, the SAB reiterated the connection between this
development of metals assessment guidance and the questions
raised during the TRI lead rule making.
``Discussions between the agency and external stakeholders,
as well as concerns expressed formally as part of the Toxics
Release Inventory lead rule making, have demonstrated the need
for a more comprehensive cross-agency approach to metals
assessments that can be applied to human health and ecological
assessments.''
EPA expects to release for public comment this week its
draft action plan--I have already seen it on the internet; it
is available now--for the development of this metals assessment
framework. I, along with my colleagues in the metals industry,
will be involved in submitting comments on this action plan.
We applaud EPA's efforts to develop a scientifically sound
metals assessment framework. We see this as a fulfillment of
the commitment the agency made in the preamble to the final TRI
lead rule in which it promised to ``seek external peer review
from its Science Advisory Board'' on two issues. One, the
question of whether lead and lead compounds should be
classified as highly bioaccumulative, and, two, the issue of
how lead and other as yet unclassified metals, such as cadmium,
should be evaluated using the PBT chemical framework, including
which types of data and which species are most suitable for
these determinations.
I might add here that to me the first question of the
highly bioaccumulative nature of lead is really a subset of the
second question. The second question is the one which should be
logically answered first, and then you consider the second
question.
All of us who are interested in a sound, scientific
approach to hazard assessment of metals and inorganic metal
compounds look forward to EPA's and the SAB's responses to both
these questions as the initiative to develop a cross-agency
metals assessment framework review goes forward.
Thank you for your attention, and I look forward to
answering any questions you may have.
[Mr. Morrow's statement may be found in the appendix.]
Chairman Pence. Thank you, Mr. Morrow.
The Chair will yield to the Ranking Member for the first
questions for our panel.
Mr. Brady. Thank you, Mr. Chairman.
Mr. McGuirk, those forms are the forms that you now have to
fill out?
Mr. McGuirk. No. These are the reporting instructions, the
guidance on what we need to fill out the forms. This is the
clarification of how to fill out the forms.
Mr. Brady. That is going to clarify something?
Mr. McGuirk. Well, apparently.
Mr. Brady. Do you know what the forms look like? I mean, do
you have forms now that you have to fill out?
Mr. McGuirk. There are TRI forms that have to be filled
out, but the concern we have now is so many more have come
under this TRI rule, and they have had no exposure to this
whatsoever.
As the lady was pointing out, they did not even know the
rule existed until probably someone mentioned it to them and
got their attention. Now they are trying to scramble to figure
out how do we comply with this?
Mr. Brady. Does anybody know what the TRI Form A is?
Ms. Klinefelter. Yes. It is actually TRI Form R, which is
for lead reporting. The actual form is not long at all. It is
actually short, but it is what goes behind it that you have to
have all these calculations upon calculations upon calculations
in order to put down a number in a certain spot.
The form itself is very unassuming. It is all the work that
you have to do behind it.
Mr. Brady. I just think that we want to protect everybody.
We want to protect people, but I guess sometimes people make
decisions that do not realize maybe the impact. The last thing
we want to do is make a decision that does not protect people.
I would like to make a decision that protects everybody.
There are people out there that could get hurt by the lead
or whatever toxic could come out of it. We also want to keep
people in business. I can appreciate what you said that you do
not have an engineer and would have to hire an engineer just to
fill out forms or find out whether you are complying, you know.
That is the only thing I am kind of concerned about and
interested in and ready to follow my Chairman to track and find
out where we are going to get to to try and solve this.
Thank you, Mr. Chairman.
Chairman Pence. Thank you. I would like to just ask one
question of each member of the panel. It is this Subcommittee's
intention to have listened to what we hear today, particularly
from our colleague from the EPA, and then we would make a
decision as to whether there is much more to be done here.
Candidly, I think our minds are racing now with inherent
contradictions built into this and the illogic of it. What the
panel has said here has just been an extremely helpful
commencement for what I can assure you the Subcommittee is
going to be taking on in a very aggressive posture leaning
forward.
It strikes me that from our testimony that we have heard
today even from the administrator from the EPA, the assistant
administrator, that this was truly a ready-fire-aim situation.
I intend to go back over the written testimony, but it seems to
me that we heard from the EPA that well, we do not have the
science. We are pretty sure it will be good. It might not.
I guess I would just like a candid assessment from any of
you. What did you think of Ms. Nelson's testimony today? Were
you encouraged? Discouraged? Were there any aspects of her
testimony that this Subcommittee should particularly focus on
or representatives of the media that are in the room should be
interested in?
I will begin with Dr. Morrow.
Mr. Morrow. Thank you, Mr. Chairman. I was a little bit
concerned in her testimony about EPA and the SAB just
considering the question of lead being highly bioaccumulative
and being a little bit vague about considering the question of
whether metals should be considered at all, and PBTs that is
why I tried to emphasize the point in my testimony.
To me, we should not even be considering the first question
if the answer to the second question is no. If lead and other
metals cannot be considered as PBTs, then there is no question.
Why consider lead as a PBT if the PBT concept is inapplicable
to metals? It is a metal. To me, that was the most disturbing
part of EPA's testimony.
Chairman Pence. Pardon me for interrupting, Doctor, but
according to her testimony today I thought she averred that
they are considering whether or not minerals should even be
classified in this way; that that is a part of the potential
new framework.
Mr. Morrow. Yes. I got two sets of answers there. I felt a
little ambiguous about exactly what she was saying. I know they
are convening the SAB and that is going to move forward, but at
the same time the TRI lead rule is moving forward, and it seems
to me that it really should not be in place if its basis is in
fact the concept that lead is a PBT.
If lead is not a PBT, then clearly if they want to
establish a different basis for the lead TRI rule that is
another matter, or if they want to change the level and so
forth that is another matter. The premise right now is lead is
a PBT, and it seems to me that that is a fairly indefensible
position.
Chairman Pence. But unless the testimony suggests
otherwise, it seems to me that question is being considered
now, which was unclear prior to this Subcommittee hearing as to
whether or not that was an issue being considered by the SAB at
this time. It is being considered and is being reviewed.
Ms. Klinefelter? Same question.
Ms. Klinefelter. Thank you. I wanted to ask a question. If
the EPA, and I forget her name. I am sorry. I am nervous.
Chairman Pence. That is all right. Nelson.
Ms. Klinefelter. Ms. Nelson. She mentioned something about
the reporting for small businesses like mine. They are not
looking for accurate data. Well, then my question is why file a
report? I mean, if EPA does not want accurate data, then it is
not worth the paper it is written on. I assume that that is
what I got from her testimony or what she spoke about. I hope I
am right.
Right now, just to give you one for instance, when we
screen print mugs or glassware we keep paint in the screen, and
it is done, you know, by hand on a machine. They use rags to
wipe out the screen, to clean it out for imprints. I use
regular Scot rags in a box that you buy from Home Depot, any
place like that.
I am to a point right now where I had to weigh a rag with
nothing on and weigh a rag that had some of the paint that they
cleaned off, but I had to wait for the solvent to dissipate
because that weighs part of it. Then I have to figure out what
percentage in that rag is lead.
I have to know this information, or I feel that I have to
know this information, in order to make my numbers correct. I
cannot guess. I am really between a rock and a hard place at
the moment.
Chairman Pence. Thank you.
Mr. Mallory.
Mr. Mallory. Yes. A couple of things came to mind as I was
listening to the assistant administrator this morning. First of
all, I heard her say on several occasions that this new TRI
reporting rule would provide better information and more valid
information to the local communities, to businesses and to the
EPA.
I really have a question as to how that can happen when the
rule says that if you do not have actual numbers make one up.
Use an estimate. Come up with your own presumptive quantity of
how much lead is going to be in the alloys that we are using
and the reporting, how to use that in our calculations and just
document where you got the numbers from.
Well, in the case of one of the alloys that we have tried
to look at, we found that it can range anywhere from .1 percent
lead to .5 percent lead in a range. Pick a number. Whatever
number you are going to pick is going to be a supposition at
best, and yet within the TRI rule it says that facilities are
required to report their emissions to a level of accuracy of
one-tenth of one pound.
Now, I cannot correlate the two statements. One, if you do
not have a good number, make one up. Two, report your levels of
emission to a level of accuracy of one-tenth of one pound.
Those two just do not gel in any assessment that I have been
able to make of the reporting requirements.
The second question that came to mind as I listened to the
assistant administrator was when she was talking about the road
test and the ``non-enforcement'' of the reporting for the first
year that the rule is in effect, she made a statement this
morning that said she was sure that no one within EPA was
intending to seek enforcement actions against someone for
erroneous reporting.
I have a question of EPA. What about the people who still
do not get it that they are required to report and in fact may
not file a report because they are not aware of the reporting
requirement? If an EPA inspector is on premise doing an
inspection and finds that this facility should have filed a TRI
report and did not, do they intend to waive enforcement in that
case, as well as for inaccuracy reporting?
I did not hear that from the administrator this morning,
and that is a question that I think is one that needs to be
answered.
Chairman Pence. Mr. McGuirk?
Mr. McGuirk. Thank you, sir. I agree with the comments of
my colleagues here on the panel, and I would just like to sum
up by saying that we believe that, you know, sound scientific
data would be absolutely necessary before you are going to go
out and collect information from small businesses. They need to
have the information. They need to have the guidance on how to
do this.
For those who have not been exposed to it before, this is a
significant burden to them. To make a rule that is retroactive
where you are estimating or guesstimating or just filling in
the blanks is absurd, so we would heartily recommend gathering
the information on a sound scientific basis.
Thank you.
Chairman Pence. Thank you. To Mr. McGuirk and Mr. Mallory,
thank you very much for your broad expertise. To Dr. Morrow, it
is enormously helpful to have your authoritative voice here in
the wake of some weird science. To Ms. Klinefelter, you did not
seem nervous at all.
Ms. Klinefelter. I was.
Chairman Pence. I am very grateful for a very clear
presentation----
Ms. Klinefelter. Thank you.
Chairman Pence [continuing]. Of what you are dealing with
as a successful entrepreneur. It is really about businesses
like yours, a family business of 50 years, that we are thinking
now as we go through this process.
Having only been in Congress a short period of time, I am
growing more and more of the belief that we pay lip service to
the people that employ America. We do not often put ourselves
in your shoes and recognize what you are dealing with. This
whole panel today has helped us on this Subcommittee now be
able to do that more effectively.
You can anticipate that this will be the first of a series
of hearings and actions that we will take, and we urge you to
keep this Subcommittee informed as this issue develops and
alert us of ways that we can be helpful.
It is our objective to either change the outcome, change
the classifications or reorganize the timetable for enforcement
here so that it simply has the least negative impact on small
business America as possible, which is the broad mission of the
Committee on Small Business in the House of Representatives.
This meeting of the Subcommittee on Regulatory Reform and
Oversight is adjourned, and we thank you.
[Whereupon, at 12:15 p.m. the Subcommittee was adjourned.]
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