[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]




 
  THE TOXIC RELEASE INVENTORY AND ITS IMPACT ON FEDERAL MINERALS AND 
                                ENERGY

=======================================================================

                           OVERSIGHT HEARING

                               before the

                       SUBCOMMITTEE ON ENERGY AND
                           MINERAL RESOURCES

                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                      Thursday, September 25, 2003

                               __________

                           Serial No. 108-59

                               __________

            Printed for the use of the Committee onResources



  Available via the World Wide Web:http://www.access.gpo.gov/congress/
                                 house
                                   or
         Committee address: http://resourcescommittee.house.gov


                                 ______

89-514              U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana     Eni F.H. Faleomavaega, American 
Jim Saxton, New Jersey                   Samoa
Elton Gallegly, California           Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee       Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland         Frank Pallone, Jr., New Jersey
Ken Calvert, California              Calvin M. Dooley, California
Scott McInnis, Colorado              Donna M. Christensen, Virgin 
Barbara Cubin, Wyoming                   Islands
George Radanovich, California        Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Jay Inslee, Washington
    Carolina                         Grace F. Napolitano, California
Chris Cannon, Utah                   Tom Udall, New Mexico
John E. Peterson, Pennsylvania       Mark Udall, Colorado
Jim Gibbons, Nevada,                 Anibal Acevedo-Vila, Puerto Rico
  Vice Chairman                      Brad Carson, Oklahoma
Mark E. Souder, Indiana              Raul M. Grijalva, Arizona
Greg Walden, Oregon                  Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado         Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona               George Miller, California
Tom Osborne, Nebraska                Edward J. Markey, Massachusetts
Jeff Flake, Arizona                  Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana           Ciro D. Rodriguez, Texas
Rick Renzi, Arizona                  Joe Baca, California
Tom Cole, Oklahoma                   Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

              SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

                    BARBARA CUBIN, Wyoming, Chairman
              RON KIND, Wisconsin, Ranking Democrat Member

W.J. ``Billy'' Tauzin, Louisiana     Eni F.H. Faleomavaega, American 
Chris Cannon, Utah                       Samoa
Jim Gibbons, Nevada                  Solomon P. Ortiz, Texas
Mark E. Souder, Indiana              Grace F. Napolitano, California
Dennis R. Rehberg, Montana           Tom Udall, New Mexico
Tom Cole, Oklahoma                   Brad Carson, Oklahoma
Stevan Pearce, New Mexico            Edward J. Markey, Massachusetts
Rob Bishop, Utah                     VACANCY
Devin Nunes, California              VACANCY
Randy Neugebauer, Texas              Nick J. Rahall II, West Virginia, 
Richard W. Pombo, California, ex         ex officio
    officio


                                 ------                                
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Thursday, September 25, 2003.....................     1

Statement of Members:
    Cubin, Hon. Barbara, a Representative in Congress from the 
      State of Wyoming...........................................     1
        Prepared statement of....................................     2
    Gibbons, Hon. Jim, a Representative in Congress from the 
      State of Nevada............................................     3
    Kind, Hon. Ron, a Representative in Congress from the State 
      of Wisconsin, Prepared statement of........................    82

Statement of Witnesses:
    Abrams, Fern, Director of Environmental Policy, IPC--The 
      Association Connecting Electronics Industries..............    49
        Prepared statement of....................................    50
    Allen, Dr. Herbert E., Center for the Study of Metals in the 
      Environment, University of Delaware........................    17
        Prepared statement of....................................    18
    Bye, Richard, Director, Environmental, Safety and Industrial 
      Health, Texas Genco L.P....................................    45
        Prepared statement of....................................    46
    Cohen, Bonner R., Ph.D., Senior Fellow, National Center for 
      Public Policy Research.....................................    29
        Prepared statement of....................................    30
    Nelson, Kimberly T., Assistant Administrator and Chief 
      Information Officer for Environmental Information, U.S. 
      Environmental Protection Agency............................     3
        Prepared statement of....................................     5
    O'Connor, Peter V., Environment and Government Affairs, 
      AngloGold North America Inc................................    19
        Prepared statement of....................................    21
    Purvis, Meghan, Environmental Health Associate, U.S. PIRG....    31
        Prepared statement of....................................    33
    Shultz, Lexi, Mineral Policy Center..........................    53
        Prepared statement of....................................    55

Additional materials supplied:
    Sullivan, Thomas M., Chief Counsel for Advocacy, U.S. Small 
      Business Administration, Statement submitted for the record    69


 OVERSIGHT HEARING ON ``THE TOXIC RELEASE INVENTORY AND ITS IMPACT ON 
                     FEDERAL MINERALS AND ENERGY''

                              ----------                              


                      Thursday, September 25, 2003

                     U.S. House of Representatives

              Subcommittee on Energy and Mineral Resources

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 2:05 p.m., in 
Room 1324, Longworth House Office Building, Hon. Barbara Cubin 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Cubin, Gibbons, Kind, and Tom 
Udall.

 STATEMENT OF HON. BARBARA CUBIN, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF WYOMING

    Mrs. Cubin. The oversight hearing by the Subcommittee on 
Energy and Mineral Resources will now come to order.
    The Subcommittee is meeting today to hear testimony on the 
Toxic Release Inventory and its impact on Federal minerals and 
energy. Under Committee Rule 4-G, the Chairman and Ranking 
Member can make opening statements, but since we don't have 
exactly a full dais up here, Mr. Gibbons and I will probably be 
the only ones to make opening statements today.
    Today we meet for an oversight hearing, as I said, on the 
EPA's Toxic Release Inventory program and its impact on 
domestic mineral and energy production.
    The Toxic Release Inventory program was started in 1988 as 
a part of the Emergency Planning and Right-To-Know Act. It was 
a response to the chemical disaster in India. The purpose of 
the Toxic Release Inventory is to inform the public about toxic 
chemical releases into the environment. Manufacturing 
facilities for some industries which manufacture, process or 
use significant amounts of toxic chemicals are required to 
report their annual releases of TRI chemicals into the 
environment.
    In 1997, EPA expanded the TRI to seven new industry 
sectors. These new reporting sectors include electric 
utilities, coal and metal mining industries, all of which 
manage large volumes of materials. Unfortunately, this 
expansion took TRI far beyond the scope of the intent of the 
statute. The result has been onerous reporting requirements, 
misleading data about toxic releases in various regions of the 
country, and zero benefit to the public.
    Unlike other reporting industries, over 85 percent of the 
volume of all materials reported by mining operations are 
metals that occur naturally in the local rock and soil and 
occur in low concentrations. This material is handled and 
safely contained in managed facilities at the reporting mine 
site. It is neither toxic nor is it a hazard to public health.
    While courts have ruled that EPA has misinterpreted many of 
the TRI reporting requirements for mining operations, to date 
EPA has failed to conform the TRI program to the courts' 
directives.
    Because of the large volume of rock and soil reported from 
mine sites in the Toxic Release Inventory, mining States and 
the mining industry are often characterized as the most 
polluted and dirtiest States in the Nation and the industry as 
the worst polluter in the Nation. This is an injustice to these 
States. TRI is being used as a scare tactic about the existence 
of substances so benign that they appear in the foods and 
vitamins that we consume daily.
    We need the EPA to transform the TRI program back to its 
initial goal to provide meaningful data pertinent to the 
public's right to be informed about toxic chemical releases. I 
look forward to the witnesses' testimony in this hearing.
    [The prepared statement of Mrs. Cubin follows:]

          Statement of The Honorable Barbara Cubin, Chairman, 
              Subcommittee on Energy and Mineral Resources

    The Subcommittee meets today for an oversight hearing on the 
Environmental Protection Agency's Toxics Release Inventory program and 
its impact on domestic mineral and energy production.
    The Toxics Release Inventory program was started in 1988 as part of 
the Emergency Planning and Right-To-Know Act. It was a response to the 
Bhopal chemical disaster in India. The purpose of the Toxics Release 
Inventory is to inform the public about toxic chemical releases into 
the environment. Manufacturing facilities for some industries which 
manufacture, process or use significant amounts of toxic chemicals are 
required to report their annual releases of TRI chemicals to the 
environment.
    In 1997, EPA expanded the TRI to seven new industry sectors. These 
new reporting sectors include electric utilities, coal and metal mining 
industries--all of which manage large volumes of materials. 
Unfortunately, this expansion took TRI far beyond the scope of the 
intent of the statute. The result has been onerous reporting 
requirements, misleading data about toxics in various regions of the 
country, and zero benefit to the public.
    Unlike other reporting industries, over 85% of the volume of all 
materials reported by mining operations are metals that occur naturally 
in the local rock and soil and occur in low concentrations. This 
material is handled and safely contained in managed facilities at the 
reporting mine site. It is neither toxic nor is it a hazard to public 
health.
    While, courts have ruled that EPA has misinterpreted many of the 
TRI reporting requirements for mining operations, to date, EPA has 
failed to conform the TRI program to the courts' directives.
    Because of the large volume of rock and soil reported from mine 
sites in the Toxics Release Inventory, mining states and the mining 
industry are often characterized as the most polluted and dirtiest 
states in the nation and the industry as the worst polluter in the 
Nation. This is an injustice to these states. TRI is being used as a 
scare tactic about the existence of substances so benign, they appear 
in the foods and vitamins we consume daily.
    We need for EPA to transform the TRI program back to its initial 
goal to provide meaningful data pertinent to the public's right to be 
informed about toxic chemical releases. I look forward to the 
witnesses' testimony.
                                 ______
                                 

  STATEMENT OF HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Mrs. Cubin. Mr. Gibbons.
    Mr. Gibbons. Thank you very much, Madam Chairman. It is 
indeed a pleasure to be here today to listen to our witnesses 
with regard to the Toxic Release Inventory and its application 
as to several of the industries, which are key industries, 
significant industries, not just to the State of Nevada but to 
this country.
    Madam Chairman, like the oil and gas industry, which is so 
prevalent in your State, mining is the key industry in the 
State of Nevada. In fact, mining is the cornerstone of the 
economic activity in this country. Should we, as a Nation, 
therefore decide upon removing mining and its industry from 
this country, we are doing a damned good job of forcing them 
out of this country because of some of the ridiculous 
applications of the rulings which we have before us, one called 
the Toxic Release Inventory.
    Madam Chairman, I may sound a little upset today, but I am. 
I have good reason and I will delve into those questions once 
we have an opportunity to question the witnesses as we go 
along. So I want to thank you for your leadership and I want to 
thank you for your willingness to bring this issue up. I look 
forward and welcome our witnesses here today, because it's 
going to be an important hearing for us to ask some questions 
and get some straight talk and some straight answers from the 
EPA.
    Thank you, Madam Chairman.
    Mrs. Cubin. Thank you, Mr. Gibbons.
    I would now like to recognize the first panel, Kim Nelson, 
the Assistant Administrator for the Environmental Protection 
Agency. I now recognize Kim Nelson to testify for 5 minutes. 
The timing lights on the table will indicate--well, you know 
what they mean.
    Ms. Nelson. I do.
    Mrs. Cubin. Thank you.

 STATEMENT OF KIMBERLY T. NELSON, ASSISTANT ADMINISTRATOR AND 
   CHIEF INFORMATION OFFICER, ENVIRONMENTAL PROTECTION AGENCY

    Ms. Nelson. Good afternoon, Chairman Cubin, and good 
afternoon, Congressman Gibbons. Thank you for the opportunity 
to discuss with you today the Toxic Release Inventory and its 
impact on Federal minerals and energy.
    Today, I'm going to speak to you briefly on three different 
topics. First, I will address the two recent court decisions 
regarding mining, two on lead reporting, and the plans of the 
Agency for burden reduction in the program.
    As you mentioned, Chairman Cubin, the Emergency Planning 
and Community Right-to-Know Act, which is the authorizing 
statute for the Toxic Release Inventory, directs EPA to provide 
information to the public on releases and other waste 
management quantities of toxic chemicals. EPA does this by 
gathering data and making information accessible to the public 
through the Internet and a variety of published reports.
    Since its implementation in 1987,TRI has been the 
centerpiece of the Agency's right-to-know programs and a very 
useful tool for assisting communities and protecting their 
environment and making businesses more aware of chemical 
releases.
    Congress initially required only the manufacturing sector 
to report the TRI. However, Congress also included in the 
statute the authority for EPA to expand and add additional 
industry sectors. In 1997, EPA issued a final rule that added 
seven industry sectors, including the metal mining and coal 
mining industries to the list of facilities reporting TRI.
    In May 1998, the National Mining Association filed a 
lawsuit challenging that 1997 rule. In 2001, the U.S. Court for 
the District of Colorado upheld EPA's authority to add the 
mining industry to the program. However, in its decision, the 
Court set aside EPA's interpretation of how the statutory 
threshold activity of processing applies to extraction and 
beneficiation, essentially ruling that a toxic chemical cannot 
be processed unless it had first been manufactured under the 
law. The Court did not rule that these are not covered 
activities, however.
    In the April 2003 decision in Barrick, the U.S. District 
Court for the District of Columbia upheld EPA's interpretation 
that mine tailings are not eligible for a de minimis exemption 
but set aside EPA's interpretation of the exemption as it 
applied to waste rock. As a result, the listed chemicals in the 
de minimis concentration in a mine's waste rock may not be 
eligible for this exemption from TRI reporting requirements.
    EPA recognizes that the court decisions in 2001 in the NMA 
lawsuit has generated some uncertainty regarding the reporting 
requirements as they apply to both extraction and 
beneficiation. The Agency intends to propose a rule in the next 
several months to adopt the revised interpretation that will 
designate how extraction and beneficiation should be 
characterized for the purposes of the TRI threshold 
determinations.
    The basis of the TRI lead rule, which was promulgated in 
2001, is EPA's determination that lead and lead compounds are 
persistent, bioaccumulative, and toxic chemicals. In the final 
rule, EPA decided to defer its determination as to whether lead 
and lead compounds are highly bioaccumulative and, instead, 
during some internal discussions within the Agency about a 
planned SAB review, it became clear that the Agency would 
benefit from an Agency-wide initiative focused on the 
scientific approach to the assessment of metals. That approach 
envisioned a two-phased process: first, the development of a 
metals action plan, and then the development of specific 
guidance documents called for in that plan, with the SAB 
involvement at each phase.
    As part of this effort, EPA has commissioned the 
development of scientific papers on the issues and state-of-
the-art approaches to metals risk assessment. The draft 
versions of these papers, as you may have seen, were released 
this past Monday for public review and comment. EPA plans 
subsequently to submit the draft metals framework document for 
peer review to the SAB and then release the final document some 
time next summer. It is our intent within the TRI program to 
take the final metals framework document and apply it to the 
program, as would be appropriate.
    Finally, in terms of burden reduction, I believe EPA has 
responded to concerns expressed by the mining industry and 
others regarding the burden of complying with TRI reporting 
requirements. There are a number of burden-limiting features 
already built into the program, including a number of mining 
specific exemptions in light of comments received during the 
1997 facility expansion rulemaking.
    EPA is about to undertake the second phase of a TRI 
stakeholder dialog to continue to explore burden-reduction 
options for the TRI program. Based on feedback received from a 
similar dialog last year, the TRI program has been working 
toward the greater use of electronic submissions over the 
Internet using our award-winning ``TRI-ME'' reporting software.
    Our upcoming stakeholder dialog will be the basis for a 
regulatory process that will provide meaningful burden 
reduction while continuing to provide valuable information to 
the public as required by the statute.
    In conclusion, I would like to reiterate EPA's strong 
commitment to implementing right-to-know statutes passed by 
Congress in a balanced manner. We will continue to identify 
improvements that will help ensure the best possible compliance 
and the best quality of information for the public.
    I thank you, Chairman Cubin, Congressman Gibbons, for the 
opportunity to be here today, and I would gladly answer any 
questions you might have.
    [The prepared statement of Ms. Nelson follows:]

  Statement of Kimberly T. Nelson. Assistant Administrator and Chief 
 Information Officer for Environmental Information, U.S. Environmental 
                           Protection Agency

Introduction
    Good afternoon, Chairman Cubin and Members of the Subcommittee. I 
appreciate this opportunity to discuss with you ``The Toxics Release 
Inventory and its Impact on Federal Minerals and Energy.'' I will speak 
briefly on the recent court decisions involving EPA and the mining 
industry, the Agency's current positions on lead reporting, and our 
efforts to reduce reporting burden for the regulated community.
TRI Background
    The Emergency Planning and Community Right-to-know Act (EPCRA) of 
1986, which is the authorizing statute for the Toxics Release Inventory 
(TRI), directs EPA to provide information to the public on releases and 
other waste management quantities of toxic chemicals. Since its 
implementation in 1987, TRI has been the centerpiece of the Agency's 
right-to-know programs and a useful tool for assisting communities in 
protecting their environment and making businesses more aware of their 
chemical releases. EPA does this by gathering data and making this 
information publicly available through the Internet and published 
reports. Congress initially required the manufacturing sector (Standard 
Industrial Classification [SIC] Codes 20-39) to report to TRI. Congress 
also included in the statute at Section 313(b) authority for EPA to add 
other industry sectors. In 1997, EPA issued a final rule that added 
seven industry sectors to the list of facilities subject to the 
reporting requirements of Section 313. The industry groups that were 
added by this rule included metal mining and coal mining.
    Before a facility in a covered industry sector is required to 
report to TRI, the facility must ``manufacture,'' ``process,'' or 
``otherwise use'' a listed toxic chemical in an amount exceeding a 
statutory threshold. For most chemicals on the TRI list, the threshold 
for manufacturing is 25,000 pounds, the threshold for processing is 
25,000 pounds, and the threshold for ``otherwise use'' is 10,000 
pounds. Reporting thresholds for those TRI chemicals classified as 
persistent, bioaccumulative, and toxic (PBT) are lower: 100 pounds for 
PBT chemicals that are persistent and bioaccumulative; 10 pounds for 
PBT chemicals that are highly bioaccumulative and highly persistent; 
and 0.1 gram for dioxin and dioxin-like compounds. Once the designated 
threshold is exceeded for a listed chemical, the facility is required 
to report data on the quantity of that toxic chemical released and 
otherwise managed as a waste.
    TRI data have proven to be a very valuable and useful source of 
information not only to communities but to businesses as well. 
Communities use TRI data to: learn about their local environment and 
harmful exposures to toxic chemicals; begin dialogues with local 
facilities to encourage the reduction of releases; and develop 
pollution prevention plans; and improve local environmental conditions. 
Businesses use TRI data to: identify opportunities for pollution 
prevention; increase efficiency or find cost savings in processes; 
demonstrate environmental progress; and improve local environmental 
conditions. These uses of the data are integral to the achievement of 
the TRI program goal which is to leverage the power of public access to 
information to improve our environment and, in this case, effect 
changes in behavior that lead to decreases in the release of toxic 
chemicals to the environment. The TRI data, in conjunction with other 
information, can be used as a starting point in evaluating harmful 
exposures that may result from releases and other waste management 
activities which involve toxic chemicals. The determination of 
potential risk depends upon many factors, including the toxicity of the 
chemical, the fate of the chemical, and the amount and duration of 
human or other exposure to the chemical after it is released.

Summary of National Mining Association and Barrick Goldstrike Mines 
        Decisions
    In 1997, EPA issued a final rule that added seven industry sectors, 
including mining, to the list of facilities subject to the reporting 
requirements of Section 313 (62 Federal Register 23834). In May 1998, 
the National Mining Association (NMA) filed a lawsuit challenging the 
1997 rule. In a 2001 decision, the U.S. District Court for the District 
of Colorado upheld EPA's authority to add the mining industry to the 
TRI program. The Court did, however, set aside EPA's interpretation of 
how the statutory requirements for TRI reporting in the statute apply 
to certain extraction and beneficiation mining activities. In the 1997 
rule that added the mining sector, the Agency interpreted the 
extraction and beneficiation of undisturbed ores to fall within EPCRA 
Section 313's definition of ``processing,'' on the basis that the 
naturally occurring, undisturbed ores were first manufactured in the 
ground by natural forces. The court disagreed with this interpretation 
ruling that a toxic chemical cannot be processed unless it first has 
been manufactured under the law.
    In the April 2003 decision in Barrick, the U.S. District Court for 
the District of Columbia upheld EPA's interpretation that mine tailings 
are not eligible for the de minimis exemption to reporting in EPA's 
existing TRI regulations. The Court, however, set aside EPA's 
interpretation of the exemption as it applied to waste rock. As a 
result, listed chemicals in de minimis concentrations in a mine's waste 
rock may now be eligible for this exemption from TRI reporting 
requirements.
    EPA recognizes that the court's 2001 decision in the NMA lawsuit 
has generated uncertainty regarding the reporting requirements as they 
apply to extraction and beneficiation. The Agency intends to propose a 
rule in the next several months to adopt a revised interpretation that 
will designate how extraction and beneficiation should be characterized 
for the purposes of the TRI threshold determination.

The TRI Lead Rule and Agency-Wide Initiative on Metals Assessment
    The basis of the TRI lead rule, promulgated in 2001 (66 Federal 
Register 4499), is EPA's determination that lead and lead compounds are 
persistent, bioaccumulative, and toxic (PBT) chemicals. EPA 
preliminarily concluded in its August 1999 proposal that lead and lead 
compounds met the criteria for being classified as highly persistent, 
highly bioaccumulative toxic chemicals. Before determining whether lead 
and lead compounds are highly bioaccumulative, EPA believes that it 
would be appropriate to seek external scientific peer review from its 
Science Advisory Board (SAB), and EPA intends to do so. During internal 
Agency discussions about the planned SAB review, it became clear that 
the Agency would benefit from an Agency-wide initiative focused on the 
scientific approach to the assessment of metals. Accordingly, EPA 
initiated a more comprehensive review than originally set out in the 
TRI lead rule. The approach envisioned a two-phase process--development 
of a Metals Action Plan and then development of specific guidance 
documents called for in that Plan--with SAB involvement at each phase.
    As part of the effort to engage stakeholders and the scientific 
community and to build on existing experience, the Agency has 
commissioned the development of scientific papers on issues and state-
of-the-art approaches to metals risk assessment. Material contained in 
these papers, when finalized, may be used in total, or in part, as 
source material for the assessment framework. To develop the issue 
papers, EPA assembled teams of experts drawn from academia, consulting 
firms and other federal agencies to work with Agency scientists. The 
draft versions of these issue papers were released this past Monday, 
September 22 to the public for comment (68 Federal Register 55051) as 
part of EPA's continuing effort to provide opportunities for external 
input to the Agency's metals assessment effort. In addition to written 
comments, EPA plans to hold a stakeholder workshop next month (October 
of 2003) to discuss the issue papers. In December of 2003, EPA plans to 
have completed an interim draft version of the metals framework. In the 
spring of 2004, EPA plans to submit the draft metals framework document 
for peer review by its SAB and then release the final document in the 
summer of 2004. Issuance of the metals characterization/ranking 
guidance document will follow soon thereafter. It is our intent to take 
the final documents and apply it to the TRI program, as appropriate.

TRI Regulatory Burden Reduction Efforts
    Finally, let me address EPA's ongoing efforts to identify and 
ameliorate any unnecessarily burdensome reporting requirements imposed 
on the mining sector, as well as the rest of the regulated community by 
the TRI program.
    The information collection burden of TRI reporting is associated 
with labor hours that staff at each facility will spend to gather 
relevant information, make compliance determinations, complete 
calculations, fill in the report, and submit it to appropriate 
authorities. The burden hour estimates for TRI reporting reflect the 
time that facilities spend using readily available data or reasonable 
estimates to complete the TRI reports. These types of estimates are 
sometimes referred to as ``engineering'' estimates because they reflect 
expert judgement rather than burden hour data from responding 
facilities.
    EPA has responded to concerns expressed by the mining industry and 
others regarding the burden of complying with TRI reporting 
requirements. First, there are a number of burden-limiting features 
already built into the program:
     By statute, only facilities with 10 or more full-time 
employees or the equivalent are subject to TRI;
     Facilities only file TRI reports for specific chemicals 
that are manufactured, processed, or otherwise used above threshold 
quantities;
     TRI requires facilities only to report using readily 
available data, or reasonable estimates. No additional monitoring or 
measurement is required;
     EPA developed some industry specific exemptions in light 
of comments received during the 1997 facility expansion rulemaking such 
as: the coal extraction exemption and the overburden exemption;
     TRI reporting provides for certain ``common sense'' 
exemptions for intake air and water, enclosed articles (lead-acid 
batteries), personal use by employees, laboratory use, etc.;
     If a facility exceeds the reporting threshold for a 
chemical, it must complete and submit a 5-page form for that chemical. 
EPA has developed an automated reporting software package (TRI-Made 
Easy) that over 90 percent of facilities used for the most recent 
reporting year;
     EPA has created a reduced-burden certification statement 
(Form A) for facilities that meet certain criteria. This option is 
available to almost 40 percent of all reporting facilities; and
     The Agency has implemented a range of compliance 
assistance activities, such as the Toxic Chemical Release Inventory 
Reporting Forms & Instructions (which is published and mailed every 
year as well as being available on-line), the industry training 
workshops, the chemical-specific and industry-specific guidance 
documents, and the EPCRA Call Center (a call hotline).
    EPA is about to undertake a ``TRI Stakeholder Dialog'' to continue 
to explore burden reduction options for the TRI program. This is 
actually the second phase of an ongoing effort to make the TRI program 
more efficient and relevant for the public. In the first phase, EPA 
solicited comments on ways to streamline the submission and processing 
of TRI data, as well as improve TRI compliance assistance programs. 
Based on feedback from this process, the TRI Program has been working 
toward releasing the data earlier, and working towards even greater use 
of electronic submissions through the use of award-winning TRI-ME 
reporting software (E-Gov Pioneer Award, June 2003) to report through 
the Internet to EPA's Central Data Exchange (CDX).
    As part of the second phase of outreach, EPA is currently 
developing a white paper that is intended to promote a lively public 
discussion on burden reduction opportunities. This TRI Stakeholder 
Dialog is the first step toward entering a regulatory process that will 
provide meaningful burden reduction associated with TRI reporting while 
continuing to provide valuable information to the public as required by 
the statute.

Conclusion
    In conclusion, I would like to reiterate EPA's strong commitment to 
implementing right-to-know statutes passed by Congress in a balanced 
manner. It is our firm belief that public access contributes positively 
to our citizen's ability to understand environmental issues and to make 
better decisions in their daily lives. We will continue to identify 
improvements that will help ensure the best possible compliance and 
best quality of information for the public.
    Thank you, Chairman Cubin, and Members of the Subcommittee, for the 
opportunity to appear today. I would be glad to take any questions you 
may have at this time.
                                 ______
                                 
    Mrs. Cubin. Thank you for your testimony. I would like to 
start the questioning.
    It is my understanding that the mining industry offered 
many months ago to work with the EPA to develop an approach to 
the TRI reporting at mining sites that better addresses the 
real environmental significance of these sites. Is the EPA 
willing to work with the mining industry on this?
    Ms. Nelson. We are certainly willing to work with the 
mining industry in discussing that, absolutely.
    Mrs. Cubin. So you will commit to the committee today that 
you will engage in a serious effort to reconsider how the TRI 
program addresses mining sites?
    Ms. Nelson. We will be happy to continue those discussions.
    Mrs. Cubin. Thank you.
    The evidence seems overwhelming that the scientific 
approach used to support the TRI rule, which relied on the BAF 
BCF model that EPA's chosen experts say is not scientifically 
supported for use with metals, is wrong.
    What actions will you take to rectify this rule's clear-cut 
reliance on unsound science?
    Ms. Nelson. Chairman, in my opening statement I referenced 
the fact that, after the TRI lead rule had been promulgated, 
and as the Agency looked to seek additional peer review and 
outside input from our Science Advisory Board on the issue of 
whether lead was highly bioaccumulative, it became apparent 
within the Agency that there was a broader issue that needed to 
be addressed across the Agency in all of its programs, not just 
the TRI program, but a broader issue in terms of how the Agency 
at large looks at metals and risk.
    As a result of that, and recognizing there was significant 
issues and concern from outsiders as well, the Agency embarked 
on that metals assessment, that metals framework process.
    What we intend to do is work just as we have with the 
Science Advisory Board. They have since put those five papers 
on the street. One of those papers deals specifically with the 
issue of bioaccumulation, others deal with the issue of human 
exposure and ecosystem issues. We will watch that process as it 
unfolds. We will look for the final documents after they've 
been publicly commented on and peer reviewed, and we will take 
the advice of the Science Advisory Board, which we think will 
have gone through a full assessment and take that framework and 
apply it to the TRI program.
    If, as a result of that new framework, we come up with some 
different conclusions in the TRI program, I have already 
committed publicly that we will make whatever changes are 
appropriate to the TRI program to conform with that new 
framework.
    Mrs. Cubin. So, having said that, do you believe that a 
trace metal that is bound up in rock presents a threat to the 
public safety?
    Ms. Nelson. Chairman, I don't know if you've had the 
opportunity to look at my credentials, but I am not a 
geologist. I don't have a degree, either a bachelor's degree or 
master's degree or training in geology. I have to rely on other 
experts in the organization. I have to rely on Paul Gilman, who 
is the Science Advisor to the Administrator, and others who do 
have the appropriate credentials to provide that information to 
me, and to the experts within the program, to make that 
decision.
    So I think it would be inappropriate for me as a witness to 
make that determination. I don't have the credentials to make 
that determination.
    Mrs. Cubin. But you do have to make that determination in 
the course of your job.
    Ms. Nelson. I will have to make a policy decision, but when 
I make that policy decision, I will want to do so based on 
input that comes from people like our Science Advisory Board, 
like Paul Gilman, who is the science advisor to the Agency, as 
well as staff within the organization who are credentialed to 
do that.
    Mrs. Cubin. So at this point in time, having seen the 
studies that have been done and the opinions that have been 
made, are you saying you don't have an opinion on that? I mean, 
with the job you're in, and the information you have access to, 
it is difficult for me to believe that you don't have an 
opinion on that.
    Ms. Nelson. What I'm saying is that there are many, many 
opinions out there on this particular issue. This is a highly 
controversial issue.
    Mrs. Cubin. Right. That's why we're here.
    Ms. Nelson. Frankly, when we deal with the issue of lead, 
the one thing I am certain of is, as I sit here as a mother 
with two small children, we know that lead, even in the 
smallest amounts, is highly dangerous. Lead can have serious 
consequences on children, serious consequences on fetuses and 
small developing children. We know that. There is evidence to 
that effect.
    How we use and how we make assessments about metals within 
the Agency is not something I should be sitting here testifying 
about today. When that is done by the Science Advisory Board, I 
will take that information and we will apply that; and I will 
have the people with the right credentials in the organization 
apply that information from the Science Advisory Board, that 
new framework to our TRI program. If it means we come up with 
different answers regarding lead or other substances that are 
currently covered in the TRI program, then we will make the 
appropriate policy decisions. I can commit to you that.
    Mrs. Cubin. I think it's safe to say that no one wants 
children, whether you're the mother of children or whether 
you're not, no one wants lead to adversely affect young 
children. However, lead is, as are other metals, a naturally 
occurring element in the environment. The balance is what we 
seek to achieve.
    Mr. Gibbons.
    Mr. Gibbons. Thank you, Madam Chairman.
    In listening to your comments there, I am reminded of the 
fact that too many times we allow emotion to override our 
intellectual and scientific analysis of many issues. For 
example, take the issue of lead that you have just talked 
about.
    I'm a father of three children and I do not want my 
children poisoned by lead, either. However, I know that my 
children aren't going to be poisoned by this piece of lead that 
I have sitting right here. It's galena. It's a lead sulfite. It 
is not toxic. Now, you could eat it perhaps and maybe consume 
it and make it toxic, but it would be tough to chew and it's 
tough to ingest, I'll guarantee you. It's not a very attractive 
thing.
    But in its natural state, in the state that it sits right 
here on my desk, it is nontoxic. But the emotion, just as I've 
heard in your voice, says everything dealing with lead is 
toxic. That's the problem we've got. We have an emotional 
attitude that overrides science and common sense.
    Miss Nelson, when did you come to the EPA?
    Ms. Nelson. I have been at EPA in my position a little less 
than 2 years, sir.
    Mr. Gibbons. And before that where were you?
    Ms. Nelson. Before that I was with the Commonwealth of 
Pennsylvania for 22 years in State government.
    Mr. Gibbons. Doing what?
    Ms. Nelson. The last 14 years I spent in the State 
Department of Environmental Protection.
    Mr. Gibbons. Doing what in that job?
    Ms. Nelson. As Executive Deputy Secretary, as the Chief 
Information Officer, as director of some programs.
    Mr. Gibbons. So you've been in your current position within 
the Federal EPA for less than 2 years?
    Ms. Nelson. Less than 2 years, that is correct.
    Mr. Gibbons. So you came in 2001.
    Ms. Nelson. That is correct.
    Mr. Gibbons. When were you nominated for the job?
    Ms. Nelson. I was nominated that summer, of 2001.
    Mr. Gibbons. You should know what the EPA's position is if 
you're an Assistant Administrator. Even though you may not have 
an opinion and you have to rely on scientists within your 
organization, you should, as Assistant Administrator, know what 
the opinion of the EPA is.
    Ms. Nelson. Yes, sir.
    Mr. Gibbons. So you couldn't answer Chairman Cubin's 
question----
    Ms. Nelson. If you will forgive me, I thought the Chairman 
was asking for my personal opinion, in my position.
    Mr. Gibbons. I think she was asking for your opinion as an 
Assistant Administrator with the EPA, which means you're 
reflecting the answer in questions of the EPA rather than 
personal questions.
    Ms. Nelson. If we may backtrack, then, for just a moment--
and I will be happy to relisten to the Chairman's question in 
that regard.
    If I may just respond to your comment, I really hope I'm 
not making decisions in an emotional way. I understand the 
issues and the concerns and all of the emotions surrounding the 
issues involving naturally occurring chemicals, and the fact 
that these are substances that are naturally occurring and 
they're in the ground and we live with them every day, and how, 
indeed, do they then fall under a Toxic Reporting Inventory 
program.
    Mr. Gibbons. Miss Nelson, do you have a garden at your 
home?
    Ms. Nelson. I do.
    Mr. Gibbons. Do you ever go out and spade your garden?
    Ms. Nelson. I do.
    Mr. Gibbons. Do you know that you release toxic elements 
into the air every time you spade your garden?
    Ms. Nelson. I do.
    Mr. Gibbons. Do you report it?
    Ms. Nelson. I do not.
    Mr. Gibbons. It is the same reason that we shouldn't have 
to report either minerals overburden, dirt that's disturbed. We 
don't disturb and we do not require a Toxic Release Inventory 
when we build a highway.
    Ms. Nelson. Right.
    Mr. Gibbons. And we're out there with bulldozers moving 
around great sums of dirt. We don't require a Toxic Release 
Inventory when we build a subdivision and we're out there 
moving a great deal of dirt.
    Ms. Nelson. Congressman, I understand that. I would just 
point out the fact that when the law was originally passed by 
Congress, there was a list of substances that were to be 
included in the reports. That list did include many of those 
naturally occurring substances. EPA did not do this----
    Mr. Gibbons. That was a rule that came out of the EPA.
    Ms. Nelson. No, I'm talking about when the law was passed 
by Congress. It originally included the list of chemicals to be 
included in the Toxic Release Inventory. Those naturally 
occurring substances were in the statute passed by Congress. 
That was not something that EPA did at its discretion.
    Mr. Gibbons. Well, let me ask another question, because my 
frustration and my disappointment in the EPA goes to whenever I 
click on EPA and I go to Toxic Release Inventory. I look at 
your website, and I go into the Toxic Release Inventory and the 
link--this is a web link that the Federal Government has, the 
Environmental Protection Agency--and you click on 
``scorecard.'' It takes you right to a scorecard of the 
Environmental Defense Fund.
    Are you sanctioning the Environmental Defense Fund's 
scorecard by this, and if so, under what authority does the EPA 
have to list and cite Environmental Defense Fund data?
    Ms. Nelson. The links to which you refer, there are many, 
many links on EPA's website. We----
    Mr. Gibbons. I can only see two.
    Ms. Nelson. Well, throughout the website. When the 
administration changed, we did look at all of those links and 
actually removed a lot of those that we deemed to be 
inappropriate.
    Mr. Gibbons. Well, I think the Environmental Defense Fund 
is inappropriate. It lists Nevada as the worst State based on 
the mining. We have already discovered, and you have already 
admitted, that the overburden that is created by moving dirt 
from one pile to another pile should not be a Toxic Release 
Inventory item. Yet, Nevada has to weigh all that. But the 
State of Pennsylvania doesn't have to weigh the amount of dirt 
it moves when it builds one of these super highways or creates 
a subdivision.
    Is this an attempt by the EPA to do away with the mining 
industry in the State of Nevada or anywhere else in the western 
part of the country?
    Ms. Nelson. No, I don't believe it is, sir.
    Mr. Gibbons. Well, the Environmental Defense Fund I would 
believe has that as one of their major goals, doing away with 
mining in this country.
    Ms. Nelson. That is not a goal of EPA, sir. I came from 
Pennsylvania, and Pennsylvania has a strong mining heritage.
    Mr. Gibbons. I would hope so.
    Ms. Nelson. It's an important part of my background. I grew 
up in Pennsylvania. There is a strong heritage there.
    Mr. Gibbons. Well, you can understand my concern when I 
type into or access into the Federal Government's website, and 
I come up with an Environmental Defense Fund, which in my view 
is an extreme environmental organization intent on eliminating 
mining from my State, and I see that you have linked into their 
site so that anybody who goes there assumes that the EPA is 
actually condoning or accepting what the Environmental Defense 
Fund is proposing or stating.
    Ms. Nelson. You will see that there are two links there, 
also, to the right-to-know net. Part of the purpose of 
including those links is that there are large constituencies 
out there that use that information, because that information 
is provided in a different format than what EPA provides. We 
also----
    Mr. Gibbons. Well, what the Environmental Defense Fund 
provides is emotion versus science. I would just hope that you 
are able to deal with this effectively.
    I disagree, and I would ask you to remove the link between 
the Environmental Protection Agency and these environmental 
sites, because it gives the impression that you're condoning 
and asking for the public to believe in what these other 
organizations present.
    Ms. Nelson. I will certainly take that under consideration.
    I will add as a final point here that we do also provide a 
link, for instance, to the American Chemistry Council. One of 
the issues that is of concern to the Chemistry Council is the 
issue of dioxin. We cooperate with that industry in terms of 
their ability to help us add some context to the issue of 
dioxin.
    So I will certainly take your issue under advisement, but 
also say we do try to provide that information in a balanced 
format, so not only does the right-to-know net and others have 
links, but we also do have a link to the American Chemistry 
Council.
    Mr. Gibbons. If you would indulge me for 1 minute, Madam 
Chairman.
    Miss Nelson, in your testimony you said that when you 
propose your rule, which may be several months down the road, 
it brings up two issues. One is time delay. It is very 
important for many of these mining companies to continue in 
existence today, and the longer the Federal Government delays 
its rulings, the greater the chance that companies that are 
important to our economy--companies that provide jobs, that 
aren't polluting, but yet are still under the burden and the 
obligations of the currently existing Toxic Release Inventory--
are going to be prejudiced for that period of time and actually 
may make a decision to look elsewhere. Time to a company, to a 
private sector company, is vastly different than to a 
government.
    You get your paycheck on Friday whether or not the State of 
Pennsylvania or the Federal Government is making a penny in 
profit. A company that's out there trying to employ people 
deals vastly differently on economic issues and their success 
is critical to timely decisions.
    That being said, you say that they ``may'' be eligible. 
What science and what standards are going to go into the 
determination about waste rock, just the ordinary, garden 
variety dirt and rock that comes out of the ground and is moved 
from one part to another? What is the science with regard to 
that? How is that going to be determined?
    Ms. Nelson. With regard to a rulemaking?
    Mr. Gibbons. Yes.
    Ms. Nelson. Let me say at this point in time the staff is 
reviewing a number of options as a result of the judge's 
ruling. The judge's ruling was not explicit in many different 
areas. What we are looking at currently is a number of 
different options in terms of how to interpret that ruling. 
There are a variety of possibilities and we're trying to 
examine all of those and understand the ramifications.
    As we move forward, whatever we do will clearly have to be 
based on sound science. We know we will be held to a very high 
standard. We will work with the appropriate staff, with the 
appropriate credentials in the organization, to ensure that 
whatever we do in moving forward will be based on sound 
science.
    When Governor Whitman was at EPA, that was one of her 
highest priorities. That's why she appointed a science advisor 
to the Administrator to serve in that capacity. As we move 
forward, I can't help but believe that any decision by EPA in 
the future will continue to have to be based on sound science.
    I will make a commitment to you that whatever decision we 
make will, in fact, be made with that kind of input from the 
appropriate people.
    Mr. Gibbons. Let me make one suggestion for you to 
consider. You may laugh at this, or you may take it seriously.
    If I'm a miner and I have to account for all of the waste 
rock as a Toxic Release Inventory that I stack up over here, I 
ought to be given credit for what I've removed from over here. 
So if I'm taking something out of the environment here and 
putting it over here, there ought to be a sum zero gain if I 
have to deal with it. So you ought to have a provision in your 
consideration for credit given for removing toxic materials 
from the environment, if you're going to ask them--because they 
didn't create it, they didn't mine it, but they moved it. So 
give them the opportunity, if you're not going to eliminate 
waste rock as a Toxic Release Inventory item, of having a 
credit for what they have removed from the inventory.
    Just a thought.
    Ms. Nelson. We will take that one under advisement.
    Mr. Gibbons. I figured you would.
    Ms. Nelson. We will.
    Mr. Gibbons. Thank you.
    Mrs. Cubin. Thank you, Mr. Gibbons.
    One comment I would like to make. I am a chemist by 
training. I have to say that, as far as sound science is 
concerned, when I look at the Environmental Defense Council 
link to the EPA site, I don't consider that sound science. I 
consider that more based on emotion rather than sound science, 
some of the conclusions that they make. So for that to be on 
the EPA website I think isn't a good thing for the EPA or 
whatever. I know you will take that under advisement, too.
    Ms. Nelson. May I ask just a point of clarification?
    Mrs. Cubin. Sure.
    Ms. Nelson. Just so there's no misinterpretation, are you 
asking for both of those links to be removed?
    Mrs. Cubin. You know, I'm not asking for both of those 
links to be removed, but I do think--well, for one thing, like 
I said, I'm a chemist, so I think that the Chemical Society is 
based on facts. It is not an environmental organization, per 
se.
    Mr. Gibbons. Madam Chairman, would you yield for a moment?
    Mrs. Cubin. Sure.
    Mr. Gibbons. I would like to ask that you do remove them, 
and I would like you to replace them with your own assessment 
from your own scientists in the EPA, rather than having an 
outside organization whose scientific data may be questionable. 
If this is going to be science from the EPA, then the EPA 
scientists ought to be responsible for identifying and 
assessing each individual State.
    Madam Chairman, I thank you for that. I just wanted to put 
that out there.
    Mrs. Cubin. Certainly. Thank you.
    Now I would like to recognize Mr. Udall.
    Mr. Tom Udall. Thank you, Madam Chairman.
    Miss Nelson, it's good to have you here today. I want to 
ask you a couple of question, but just initially, it seems to 
me that this issue is one of trying to let the public know what 
the toxic releases are out there, regardless of where they come 
from. The reason for doing that in these right-to-know laws is 
that we have seen dramatic change in a variety of areas, not 
just this particular area that we're talking about on mining. 
But when the public knows what releases are, then the push is 
on cleaning these things up and having a healthier environment. 
I assume that is what the real basis is of what we're talking 
about.
    Could you tell me what the motivating factors were behind 
the EPA's 1997 rulemaking to include the coal and metal mining 
industry in the Toxic Release Inventory? Could you tell me what 
that was?
    Ms. Nelson. Congressman, you weren't here earlier. I have 
only been at EPA for 2 years, so that does predate my arrival 
here.
    But my understanding is that at that point in time the 
Agency thought it was following congressional intent, and that 
is, Congress passed the TRI law with the manufacturing sector. 
It did specifically give EPA the authority to add other 
industrial sectors.
    When the staff looked at those sectors that appeared to 
use, to manufacture, to somehow process those chemicals that 
appeared on the list, those substances that were in the 
original statute passed by Congress, the metal mining industry 
came near the top in terms of having access and using those 
particular chemicals that were on the original TRI list. Thus, 
it put that proposal out for public comment.
    As a result of a full vetting of that particular proposal, 
EPA at that point in time added the metal mining industry and 
the coal mining industry.
    I will add that I think there was a lot of sensitivity at 
EPA at the time. As I said, I was in Pennsylvania when that 
particular decision was reached, and worked with our mining 
program considerably in Pennsylvania. There was a tremendous 
amount of concern about what impact that would have in terms of 
reporting to the public. But I know the Agency went to great 
lengths to try to limit that burden.
    For instance, there are only about 88 or 89 metal mining 
facilities in 88 or 89 coal mining facilities that report. That 
means only 7 percent of all the coal mining operations in the 
entire Nation report, and only 21 percent of the entire metal 
mining facilities report in this country. So the population 
that was identified were truly those operations that were 
large-scale operations, that were dealing with a lot of those 
substances that were on that original list.
    Mr. Tom Udall. You mentioned public comment after you went 
out. Could you tell us what the public response was?
    Ms. Nelson. Again, I wasn't here and I don't have that full 
record at my disposal. I can go back and look at it. But I can 
only assume that there was a tremendous amount of support for 
adding those industries. Otherwise, the Agency would not have 
done that. Sure, there was disagreement from some sectors for 
adding it, but there must have been a tremendous amount of 
public support for adding those.
    Mr. Tom Udall. Would you let us know for the record--I know 
you weren't there, but I would like just a short summary, Madam 
Chairman, of what the public comment was, the variety of 
comments, how many comments, that kind of thing, because I 
think it's important to what we're doing here.
    Mr. Tom Udall. The court suits that you mentioned, these 
were associations or mining industry people that tried to be 
taken out of the TRI--they sued to be taken out?
    Ms. Nelson. The first court decision I mentioned was the 
National Mining Association versus Carol Browner, the last 
administration. The second one was Barrick, which is a metal 
mining operation out west, versus Whitman, yes.
    Mr. Tom Udall. In both cases, the courts said that you were 
within your authority to list; they didn't exclude, they didn't 
follow what the plaintiffs were asking?
    Ms. Nelson. Well, in both cases there were what some people 
might term split decisions, because there were any number of 
issues that were brought between the court, and in both of 
those cases the court ruled in favor of EPA in some instances, 
and in favor of the plaintiffs in some instances.
    But it was only clear, It was definitely clear in both of 
those cases that, in fact, the court upheld EPA's authority to 
include the mining industry in the TRI program. In particular, 
it was the NMA decision where that particular issue was brought 
before the court.
    Mr. Tom Udall. Thank you. I see my time is up, so I will 
yield back at this point. Thank you very much, Miss Nelson.
    Ms. Nelson. Thank you,
    Mrs. Cubin. I would like to thank you for your testimony 
and your answers----
    Mr. Gibbons. Madam Chairman.
    Mrs. Cubin. Mr. Gibbons.
    Mr. Gibbons. May I have a follow up with Miss Nelson?
    Mrs. Cubin. Sure.
    Mr. Gibbons. I appreciate that.
    In response to my colleague, Mr. Udall's request about the 
public comments, could you also break it down as to what 
regions of the country those comments came from? In other 
words, two million comments from New York about the mining 
industry in Nevada, to me, has less impact than two million 
comments coming out of New York about the mining industry in 
New York. I would like to know how many of those comments came 
from various regions, whether they came from the State of 
Nevada and applied to the mining industry in the State of 
Nevada, or they came from somewhere outside the country. If you 
could do that, I would appreciate it.
    Ms. Nelson. Yes, sir, we will do that.
    Mr. Gibbons. Also with regard to the decision of the court, 
about EPA's authority, there is no doubt that the EPA probably 
had the authority to regulate and to include those industries 
in the Toxic Release Inventory. I'm questioning whether or not 
the EPA truly believes that the simple moving around of dirt is 
the appropriate inclusion in a Toxic Release Inventory, versus 
the authority to do that.
    No doubt the EPA has the authority to do a lot of things. I 
mean, you could come in here and probably have the authority to 
say that the air in Washington, D.C., is bad, no doubt about 
that, even though we may not have specifically said you could 
deal with Washington, D.C. But I do want to have an 
understanding that simply giving the EPA the authority to do it 
doesn't necessarily mean that the science requires you to do 
it.
    With that, I want to thank you, Madam Chairman. And I thank 
the witness. I really do appreciate her candidness, and I know 
this is probably one of the first times you ever get to get up 
here and it's probably the last time you will want to come 
back.
    [Laughter.]
    Ms. Nelson. I wish I could say it was the first time. It's 
not.
    Let me just say for the record that I did have the pleasure 
of meeting with the Chairman's staff yesterday. I do like to 
work in a cooperative spirit. I spent 22 years in State 
government, some of those in the General Assembly, as well as 
the executive branch. I believe it's important to work 
together, so I would like to believe that we can continue this 
dialog as we seek some solutions.
    Mr. Gibbons. Madam Chairman, I would have some written 
questions that I would like to submit to the committee for the 
witness as well, and would hope she would be able to get those 
questions and the answers back to us in 10 days.
    Mrs. Cubin. The record will be held open for questions.
    Mr. Tom Udall. I also make the same request.
    Mrs. Cubin. Certainly. Other members who are not here today 
might also want to submit questions. So we will hold the record 
open for 10 days and hopefully you will be able to respond in 
that amount of time.
    Thank you very much, Miss Nelson. We really do appreciate 
your being here.
    Ms. Nelson. Thank you, Madam Chairman.
    Mrs. Cubin. I would now like to recognize the second panel 
to testify: Dr. Herbert E. Allen, Center for the Study of 
Metals in the Environment, University of Delaware; Peter 
O'Connor, Environment and Government Affairs, AngloGold North 
America, Inc.; Bonner R. Cohen, Ph.D., Senior Fellow at the 
National Center for Public Policy Research; and Meghan Purvis, 
Environmental Health Associate with the U.S. PRIG.
    I would like to remind you all that your oral testimony is 
limited to 5 minutes. However, your entire written testimony 
will be entered into the record. So if you will abide by the 
clocks, we would appreciate that.
    First I would like to recognize Dr. Herbert E. Allen for 
his testimony

STATEMENT OF HERBERT E. ALLEN, CENTER FOR THE STUDY OF METALS, 
                     UNIVERSITY OF DELAWARE

    Dr. Allen. Good afternoon, Madam Chairman, and members of 
the committee.
    Mining waste materials often contain metals, such as copper 
and lead, and metalloids, such as arsenic, that are commonly 
regarded as having the potential to be toxic to humans and to 
organisms in the environment. Whether toxicity occurs depends 
critically on the physical and chemical composition of the 
waste material and on the chemical conditions in the 
environment receiving the waste material.
    The total concentration of a contaminant is not predictive 
of the toxicity observed for either humans or for other animal 
or plant species. Only a fraction, the bio-available fraction, 
causes a toxic response. Both the chemical form of a substance 
and interactions of the contaminants and the organism with 
other substances affect the bioavailability of the contaminant. 
In addition, there must be exposure of the organism to the 
contaminant before any toxic response can occur. I would like 
to discuss exposure and chemical effects on bioavailability as 
two important factors that must be considered in the evaluation 
of toxicity.
    Toxicity data are commonly developed in the laboratory 
using soluble salts. This generally supplies the contaminant in 
its most bioavailable form. Some contaminants in soil, 
sediment, water and wastes are often less available than would 
be concluded based on the total amount present in the test. A 
recent panel of the National Academies recommended greater use 
of bioavailability in risk assessments.
    To exert a toxic response, a contaminant must be able to 
interact with a receptor in the exposed organism. Generally, 
this requires that the contaminant be dissolved. This 
dissolution can occur either in the environment or within the 
body of the organism. Extractions of lead and arsenic from 
contaminated soils have been shown to correlate well with 
uptake by animal surrogates for humans. Often, less than one-
half of the lead in a sample is bioavailable.
    Contaminants from other solid materials are likewise poorly 
soluble in the acidic stomach of a mammal. A soil-dwelling 
organism can access only a small fraction of the metal, that 
which is soluble and in soil solution or is dissolved in its 
gut following ingestion of soil particles.
    Aquatic organisms are exposed to both inorganic particles 
and food particles, and to dissolved forms of contaminants. 
Understanding bioavailability of contaminants in food is an 
area of active research that is being pursued by the 
Environmental Protection Agency and others.
    Present water quality criteria address dissolved 
contaminants. However, the toxicity of a metal can vary over 
200-fold, depending upon the chemistry of the water. The 
principal factors controlling the bioavailability are water 
hardness, acidity and the concentration of dissolved natural 
organic matter. A new generation of water quality criteria for 
metals that incorporate these factors for the protection of 
aquatic life is being readied for release by EPA. Toxicity is 
accurately predicted by a model called the Biotic Ligand Model 
that accounts for the interaction of metals with substances 
that modify their toxicity and by substances in the water that 
modify the response of organisms to metals.
    Currently, EPA is developing a framework for assessment 
hazards and risks of metals and metal compounds. The goal is to 
develop a cross-Agency framework describing the basic 
principles that need to be considered in assessing the hazards 
and risks posed by metals. It will present a consistent 
approach for making these assessments.
    The EPA Science Advisory Board panelists who reviewed the 
Agency's plan for the development of the framework stressed the 
importance of environmental chemistry and its relevance to the 
assessment of both inorganic and organo-metallic compounds. 
They also pointed out the importance of bioavailability in 
assessment of risks and hazards posed by metals.
    The Agency should be encouraged to apply the best science 
available as they complete the framework. This would emphasize 
the key roles of incorporating exposure and bioavailability in 
the assessment of risk of metals.
    Thank you again for this opportunity to address the 
committee. I would be pleased to answer your questions.
    [The prepared statement of Dr. Allen follows:]

 Statement of Dr. Herbert E. Allen, Center for the Study of Metals in 
                the Environment, University of Delaware

    Good afternoon, Madam Chairman, Mr. Kind, and members of the 
Committee: Mining waste materials often contain metals, such as copper 
and lead, and metalloids, such as arsenic, that are commonly regarded 
as having the potential to be toxic to humans and to organisms in the 
environment. Whether toxicity occurs depends critically on the physical 
and chemical composition of the waste material and on the chemical 
conditions in the environment receiving the waste material.
    The total concentration of a contaminant is not predictive of the 
toxicity observed for either humans or for other animal or plant 
species. Only a fraction--the bioavailable fraction--causes a toxic 
response. Both the chemical form of a substance and interactions of the 
contaminant and the organism with other substances affect the 
bioavailability of the contaminant. In addition, there must be exposure 
of the organism to the contaminant before any toxic response can occur. 
I would like to discuss exposure and chemical effects on 
bioavailability as two important factors that must be considered in the 
evaluation of toxicity.
    Toxicity data are commonly developed in the laboratory using 
soluble salts. This generally supplies the contaminant in its most 
bioavailable form. Some contaminants in soil, sediment, water and 
wastes are often less available than would be concluded based on the 
total amount present in the test. A recent panel of the National 
Academies recommended greater use of bioavailability in risk 
assessments.
    To exert a toxic response, a contaminant must be able to interact 
with a receptor in the exposed organism. Generally, this requires that 
the contaminant be dissolved. This can occur in the environment or 
within the body of the organism. Extractions of lead and arsenic from 
contaminated soils have been shown to correlate well with uptake by 
animal surrogates for humans. Often, less than one-half of the lead in 
a sample is bioavailable. Contaminants from other solid materials are 
likewise poorly soluble in the acidic stomach of a mammal. A soil-
dwelling organism can access only a small fraction of the metal, that 
which is soluble and in soil solution or is dissolved in its gut 
following ingestion of soil particles.
    Aquatic organisms are exposed to both inorganic particles and food 
particles, and to dissolved forms of contaminants. Understanding 
bioavailability of contaminants in food is an area of active research 
that is being pursued by the Environmental Protection Agency (EPA) and 
others. Present water quality criteria address dissolved contaminants. 
However, the toxicity of a metal can vary over 200-fold depending on 
the chemistry of the water. The principal factors controlling the 
bioavailability are water hardness, acidity and the concentration of 
dissolved natural organic matter. A new generation of water quality 
criteria for metals that incorporate these factors for the protection 
of aquatic life is being readied for release by EPA. Toxicity is 
accurately predicted by a model called the Biotic Ligand Model that 
accounts for the interaction of metals with substances that modify 
their toxicity and by substances in the water that modify the response 
of organisms to metals.
    Currently EPA is developing a Framework for Assessing Hazards and 
Risks of Metals and Metal Compounds. The goal is to develop a cross-
Agency framework describing the basic principles that need to be 
considered in assessing the hazards and risks posed by metals. It will 
present a consistent approach for making these assessments. The EPA 
Science Advisory Board panelists who reviewed the Agency's plans for 
development of the Framework stressed the importance of environmental 
chemistry and its relevance to the assessment of both inorganic and 
organometallic compounds. They also pointed out the importance of 
bioavailability in assessment of risks and hazards posed by metals. The 
Agency should be encouraged to apply the best science available as they 
complete the Framework. This would emphasize the key roles of 
incorporating exposure and bioavailability in the assessment of risk of 
metals.
    Thank you again for this opportunity to address the Committee. I 
would be pleased to answer your questions.
                                 ______
                                 
    Mrs. Cubin. Thank you, Dr. Allen.
    Now I would like to introduce Peter O'Connor for 5 minutes.

  STATEMENT OF PETER O'CONNOR, ASSISTANT GENERAL COUNSEL AND 
 DIRECTOR, ENVIRONMENT AND GOVERNMENT AFFAIRS, ANGLOGOLD NORTH 
                          AMERICA, INC

    Mr. O'Connor. Good afternoon, Madam Chair, and members of 
the Committee.
    On behalf of the National Mining Association, we have 
prepared some lengthy written testimony that I plan to 
summarize here.
    I appreciate this opportunity on behalf of NMA to provide 
these comments on the TRI program as it is being applied to the 
metal and coal mining industry. EPA imposed the TRI program on 
these two sectors in a 1997 rulemaking.
    While my focus today is on the relationship of the TRI 
program to metal and coal mining facilities, it should be 
recognized that the TRI program is but one of a host of 
statutory and regulatory requirements applicable to the mining 
industry.
    Among these many programs, EPA's TRI program unfortunately 
stands out as the one that provides the public with a highly 
distorted picture of the mining industry.
    As a quick background, in 1986 Congress enacted EPCRA, 
including Section 313, which gives rise to the TRI program. At 
that time, Congress was responding to serious domestic and 
international manufacturing plant chemical accidents for which 
the emergency response was either unavailable or ill-prepared 
and about which neighboring communities had little information. 
EPCRA and, more specifically, TRI were intended to allow 
government agencies, the private sector, and the public to make 
informed decisions about managing or responding to chemical 
releases.
    The list of chemicals subject to the TRI program contain 
over 600 substances, including many metals and metal compounds. 
While sometimes manufactured by man, these compounds also occur 
naturally throughout the rock and dirt that makes up the earth. 
In 1997, EPA took the position that all TRI chemicals, man-made 
or naturally occurring, had to be reported. In particular, EPA 
required that any dirt or rock that is moved at a mine was 
subject to TRI reporting as a ``release to land''--despite the 
fact that such dirt and rock had been in the land for millions 
of years.
    The slides found on page 4 of our written testimony help to 
illustrate what I mean. The slides show a progression of 
activities at a surface mine from mining to reclamation. Note 
that release, as that term is defined under TRI, is what is 
occurring in Slides 2, 3 and 4. That is the movement of rock 
from a surface mine to an approved engineered rock disposal 
area at a mine site.
    The vast majority of what coal and metal mining reports, 
about 85 to 99 percent, depending upon the facility, consists 
of naturally occurring substances in the dirt and rock we move 
and manage at our facilities. EPA has recognized, for example, 
with respect to the calendar year 2001 reports, that over 99 
percent of the metal mining sectors reported releases were 
releases to land; that is, the movement and management of dirt 
and rock contained in these naturally occurring metals and 
metal compounds.
    The mining industry is not the only one that is concerned 
about the TRI program. In 2002, the Western Governors 
Association readopted a resolution recognizing that, with the 
1997 expansion of TRI to new industry sectors, there was a 
heightened need to ensure that the reported data are 
communicated to the public in an understandable manner that 
includes a description of how these materials are managed so 
that actual releases to the environment where public exposure 
may actually occur are minimized.
    In short, what is needed and what the public sought when 
TRI originally was passed by Congress is a rational, common 
sense reporting program.
    In the last several years, two major Federal Court 
decisions have imposed on the TRI-mining relationship a degree 
of rationality missing in EPA's approach.
    Where do the two court decisions leave us? Mining 
facilities remain subject to TRI reporting requirements. 
Certainly, as TRI chemicals that mines ``otherwise use,'' such 
as cyanide, sulfuric acid and other man-made TRI chemicals used 
onsite, mines have continued to report under TRI and are 
committed to providing the public with information about our 
use and management of these chemicals. In addition, to the 
extent that extraction and beneficiation operations at metal 
mines and beneficiation operations at coal mines might 
manufacture TRI chemicals, those chemicals also are subject to 
reporting.
    Naturally occurring TRI chemicals that the mines do not 
manufacture and, thus, cannot process, however, should no 
longer be subject to TRI reporting. Removing these huge numbers 
of naturally occurring chemicals entrained in dirt and rock 
should provide the public a clearer picture of TRI listed 
chemicals at mines with which we understand the public has more 
interest.
    In conclusion, EPA needs to adopt regulations and policies 
to implement these court decisions. EPA and industry should 
work together so that the TRI data are communicated to the 
public in an understandable manner, as specifically suggested 
by the WGA. It is unfair to the public for the Agency to 
continue its annual dump of TRI data without providing adequate 
explanation and accurate context for the data.
    For mining facilities, where large numbers have been the 
norm, the misleading implications have been that the mines are 
indiscriminately, and without any regulatory oversight, dumping 
vast quantities of toxic chemicals into the environment when, 
in fact, they have been placed in dirt and rock in permitted 
and engineered materials management facilities.
    Thank you again for the opportunity to testify.
    [The prepared statement of Mr. O'Connor follows:]

 Statement of Peter O'Connor, Assistant General Counsel and Director, 
 Environment and Government Affairs, AngloGold North America Inc., and 
          Chairman, National Mining Association TRI Work Group

    Good afternoon, Madame Chair and members of the Subcommittee.
    My name is Peter O'Connor. I am Assistant General Counsel and 
Director, Environment and Government Affairs for AngloGold North 
America Inc. AngloGold is a gold mining company with mining operations 
and exploration activities in Alaska, Colorado and Nevada.
    I am also Chair of National Mining Association's (NMA) TRI Work 
Group. NMA is an industry association representing the producers of 
most of the Nation's coal, metals, industrial and agricultural 
minerals; the manufacturers of mining and mineral processing machinery, 
equipment, and supplies; and the engineering and consulting firms, 
financial institutions, and other firms serving the mining industry.
    I appreciate the opportunity on behalf of NMA to provide these oral 
comments and submit written testimony on the Toxics Release Inventory 
(TRI) program as it is being applied to the metal and coal mining 
industry. EPA imposed the TRI program on these two sectors (SIC Codes 
10 and 12, respectively) in a 1997 rulemaking.
Overview
    The mining industry supports the public's right to know useful 
information about materials and chemicals that may affect their health 
or the environment. However, the manner in which EPA has applied the 
TRI program to metal and coal mines has resulted in the dissemination 
of data that is not useful or meaningful to the communities surrounding 
our operations or to the general public.
    This distortion of Congressional intent has occurred because EPA 
continues to treat naturally-occurring metals and metal compounds in 
dirt and rock that are moved and deposited at a mine site the same as 
releases of man-made chemicals from an industrial plant. That approach 
leads to enormous reported numbers which give the public an inaccurate 
and misleading picture of chemical releases in their community. It also 
discourages recycling and pollution prevention at mine sites.
    The public and the industry deserve a better reporting program. The 
courts have recognized that naturally-occurring chemicals in dirt and 
rock are not the same as releases of man-made chemicals. These court 
decisions have imposed some rationality on how TRI relates to mining. 
EPA needs to conform its regulations and policies to those court 
decisions without further delay.
    EPA and the industry must work together to provide the public with 
accurate and understandable information. This information should 
include specifics on how these chemicals are managed. In this way, the 
public (as well as EPA) would have meaningful information about the 
true level of releases in their communities. Additionally, in the 
unlikely event of a release that may be of concern, the release would 
be more readily understood and steps could be taken to minimize it.
Introduction
    My focus today is on the relationship of the TRI program to metal 
and coal mining facilities. The TRI program is one of a host of 
statutory and regulatory requirements applicable to the mining 
industry. The industry is subject, for example, to numerous federal 
environmental requirements, including the Clean Air Act (CAA); the 
Clean Water Act (CWA); the Safe Drinking Water Act; the Solid Waste 
Disposal Act, as modified by the Resource Conservation and Recovery Act 
(RCRA); the Comprehensive Environmental Response, Compensation and 
Liability Act; the Endangered Species Act; and the National Historic 
Preservation Act. Mining projects typically are subject to review under 
the National Environmental Policy Act (NEPA). Coal mining operations 
are regulated under provisions of the Surface Mining Control and 
Reclamation Act (SMCRA). Metal mining operations are subject to state 
mining and reclamation requirements and, if conducted on federal lands, 
to the mining and reclamation requirements imposed by the federal 
Bureau of Land Management and/or the U.S. Forest Service. 1 
Under these programs, the mining industry has provided a wide range of 
information to state and federal agencies, and this information is 
publicly accessible.
---------------------------------------------------------------------------
    \1\ This list is not all-inclusive; it does not, for example, take 
into account a myriad of local ordinances and requirements (e.g., land 
use requirements) that can affect mining operations.
---------------------------------------------------------------------------
    Among these many regulatory programs, EPA's TRI program 
unfortunately stands out as the one that provides the public with a 
highly distorted picture of the mining industry. Allow me to explain.
TRI Background
    In 1986, Congress enacted the Emergency Planning and Community 
Right-to-Know Act (EPCRA), including section 313 which gives rise to 
the TRI program. At that time, Congress was responding to very serious 
domestic and international manufacturing plant chemical accidents for 
which emergency response was either unavailable or ill-prepared and 
about which neighboring communities had little information. EPCRA, and 
more specifically TRI, were meant to provide the public with meaningful 
information on chemical releases. This information was intended to 
allow government agencies, the private sector, and the public to make 
informed decisions about managing or responding to chemical releases. 
Congress mandated that TRI reports be filed annually by facilities in 
SIC Codes 20-39, the traditional manufacturing sector of the American 
economy and the program was designed with these industries in mind. In 
1990, Congress expanded the TRI reporting obligations to create 
incentives for pollution prevention.
    EPA's approach to implementing TRI, however, has added some 
problematic twists to the program. For instance, TRI data reported to 
the public as chemical releases do not address risk or human exposure 
to chemicals or the level of toxicity of a chemical. 2 
Additionally, the CAA, for example, is designed to regulate emissions 
to ambient air, typically the property boundary; whereas, in TRI that 
same determination occurs wherever on the property a listed chemical is 
found. Thus, a TRI ``release'' includes the placement of material into 
an on-site, engineered facility such as a permitted rock disposal 
facility at a mine or shipment of material off-site to an approved RCRA 
Subtitle C hazardous waste management facility.
---------------------------------------------------------------------------
    \2\ For example, TRI takes no account of the concentration of a 
listed chemical once triggered for reporting, e.g., the program makes 
no distinction between the reporting of a pound of pure cobalt versus 
that same pound tied up in hundreds or thousands of pounds of a rock 
matrix.
---------------------------------------------------------------------------
    All non-accidental releases reported under TRI are specifically 
approved under other environmental laws, such as air emissions under 
the CAA or water discharges under the CWA. One result is that TRI too 
often gives the public a distorted and misleading picture of reporting 
facilities' environmental record and practices. This result was 
compounded many times over when EPA applied the TRI program to coal and 
metal mines in 1997.
    Perversely, should there subsequently be an actual release of a TRI 
chemical from the facility into the environment, TRI does not account 
for that subsequent real release on the theory that since everything 
placed in that unit has already been counted as a release, counting the 
subsequent release would amount to double counting. Thus, what the 
public is most often concerned about is not revealed by TRI although 
the industry may report such releases under other programs.
Mining and TRI
    The list of over 600 substances that must be reported under TRI 
chemicals includes many metals and metal compounds. While sometimes 
manufactured by man these metals and metal compounds also occur 
naturally throughout the rock and dirt that makes up the Earth. EPA had 
made no distinction between man-made and naturally-occurring forms of 
these metals and metal compounds. However, the agency took the position 
in its 1997 rule (expanding the TRI program by the addition of seven 
new industries, including coal and metal mining) that all TRI 
chemicals, man-made or naturally-occurring, had to be reported. In 
particular, EPA required that any dirt or rock that is moved at a mine 
was subject to TRI reporting as a ``release to the land'' despite the 
fact that such dirt and rock had been in the land at the site for 
millions of years.
    The slides attached to the written testimony help to illustrate 
what I mean by the movement and management of dirt and rock. These 
slides provide a progression of mining activities at a metal mine from 
surface excavation activities through the reclamation process.
    A typical surface mine moves millions of tons of rock and dirt to 
provide the energy and materials society requires for national and 
economic security. The result of this counter-intuitive TRI reporting 
approach is to make mining the nation's largest reporter (usually 
mischaracterized as ``polluter'') of TRI-listed chemicals. For calendar 
year (CY) 2001, this program resulted in the reporting of 2.78 billion 
pounds of TRI ``releases'' or 45 percent of the total reported TRI 
releases for the year. TRI has erroneously turned states with any 
significant mining industry into the nation's so called ``dirtiest'' 
states. Nevada, for example, went from 44th for TRI ``releases'' 
3 in CY 1997 to 1st in CY 1998 and thereafter, including the 
most recent reporting period. 4
---------------------------------------------------------------------------
    \3\ The top three states for TRI releases based on EPA's most 
recent TRI data release in July 2003 were Nevada, Utah and Arizona, in 
that order. All have very significant mining operations.
    \4\ For example, the total reported releases for the state of 
Nevada in 1997 were 4.4 million pounds that resulted in the state being 
ranked #44; the total reported releases for Nevada in 2001 were 
783,494,630 million pounds that resulted in the state being ranked #1. 
2001 TRI Public Data Release, Executive Summary, Table ES-2, page ES-4. 
EPA, July 2003.
---------------------------------------------------------------------------
    What should be made clear is that the vast majority of what mining 
reports--from 85 to 99 percent--consists of naturally-occurring 
substances in the dirt and rock we must move and manage at our 
facilities. In CY 2001, for example, even EPA recognized that over 99 
percent of the metal mining sector's reported releases were ``releases 
to land,'' 5 i.e., the movement and management of dirt and 
rock containing these naturally-occurring metals and metal compounds. 
When asked, EPA made this clarification.
---------------------------------------------------------------------------
    \5\ 2001 TRI Public Data Release, Executive Summary, page ES-5. 
EPA, July 2003.
---------------------------------------------------------------------------
    Unfortunately, many chose not to ask. For example, in a September 
23, 2003, press release, the Mineral Policy Center (MPC) characterized 
EPA's current approach as follows: ``Families and communities gain 
invaluable public information from TRI about potentially dangerous 
chemicals released into their water and air'' (emphasis added). They 
went on to say that resolutions adopted by the Western Governors 
Association (WGA) calling upon EPA to make its reports more meaningful, 
``would prevent the public from knowing about chemical releases that 
have severe human health impacts.'' In both cases, the MPC has 
mischaracterized the TRI data--and more importantly, its significance 
to the public. The simple fact is that the vast majority of naturally-
occurring chemicals in dirt and rock never enter the air or water. It 
should be noted, however, the current reporting regime contributes 
significantly to that mischaracterization.
    As this example demonstrates, EPA's policy frustrates public 
understanding about mining operations. Information on the management 
and the precautions taken in the handling of substances of potentially 
more interest to the public--e.g., cyanide used in gold production or 
sulfuric acid in copper production--are lost in the ``noise'' created 
by reporting large numbers of naturally-occurring substances.
TRI Discourages Pollution Prevention and Recycling at Mining Facilities
    EPA's implementation of TRI discourages recycling at mining 
facilities by treating recycling as ``waste management.'' For example, 
pad material at gold operations may be suitable for other uses once 
precious metal recovery operations have been completed. But if that pad 
material after appropriate detoxification and full approval by the 
appropriate regulatory agencies is used as a substitute for commercial-
grade road bed materials (i.e., gravel), EPA does not recognize this as 
recycling. Rather, EPA views this as a waste management activity and a 
facility must report such re-use as disposal under the ``otherwise 
use'' threshold activity. 6
---------------------------------------------------------------------------
    \6\ Were a mine to purchase gravel for use on-site, the facility 
would be entitled to a reporting exemption for any TRI chemicals 
present in the gravel at de minimis levels; however, EPA refuses to 
accord the de minimis exemption to leach pad material that is a 
substitute for commercially purchased gravel.
---------------------------------------------------------------------------
    Another example: state and federal regulatory programs recognize 
that coal combustion products (often termed ``CCPs'') can have many 
beneficial uses at mine sites (e.g., as roadbed material, soil 
amendments, buffering to prevent or eliminate acid mine drainage, in 
cement to seal mine openings and shafts, and to assist in returning 
coal mine site to approximate original contour as required by SMCRA). 
In each case, the CCPs provide an environmental as well as an economic 
benefit. Yet under EPA's approach to TRI, all of these beneficial uses 
must be reported as waste management, sometimes causing the double 
reporting of the same CCPs (first by the generating utility and second 
by the mine). Despite such uses being permitted and encouraged by state 
and federal regulatory programs--including other EPA programs--EPA's 
approach to TRI tells the public that CCPs used in this manner are 
being disposed of as waste. 7 On this point NMA strongly 
endorses the testimony offered today by Mr. Richard Bye on behalf of 
Texas Genco, the Edison Electric Institute, and the Utility Solid Waste 
Activities Group.
---------------------------------------------------------------------------
    \7\ In another frustrating example, EPA requires that mines leasing 
reclaimed mine land to farmers must file reports on TRI chemicals in 
the agricultural chemicals the farmers apply to the reclaimed mine land 
to help grow crops.
---------------------------------------------------------------------------
    EPA has consistently tried to use the TRI program to support 
pollution prevention (P2) program efforts. For example, EPA annually 
analyzes the amount of reported TRI releases to identify trends and, 
hopefully, reductions in chemicals released, changes that could occur 
as a result of modifications to production systems or reductions in the 
amount of TRI-listed chemicals used. EPA also has noted that 
``[c]ommunities use TRI data to begin dialogues with local facilities 
and to encourage them to reduce their emissions, develop [P2] plans, 
and to improve safety measures.'' 8
---------------------------------------------------------------------------
    \8\ See How Are the Toxics Release Inventory Data Used?--
government, business, academic and citizen uses. EPA Report No. EPA-
260-R-002-004 (May 2003) at p. 1.
---------------------------------------------------------------------------
    Mining, however, is unique. Other industrial facilities may elect 
to modify their raw materials or even substitute a completely different 
raw material as a means of reducing or eliminating a listed chemical. A 
mine, however, cannot control the amount of naturally-occurring TRI 
chemicals in the rock and dirt. Since the vast majority of mining's 
reported TRI releases are naturally-occurring substances in the dirt 
and rock moved and managed at a mine site, the typical P2 chemical 
reduction process that has occurred in other industries does not apply 
to mining. While companies have increased recycling and pollution 
prevention activities, EPA's approach to TRI obscures the progress made 
by mining companies in protecting public health and the environment. 
Under EPA's approach to TRI, the public must go elsewhere to learn 
about such matters.
    For example, four Nevada mining companies worked with the state of 
Nevada to develop and implement a voluntary program 9 to 
achieve significant, permanent, and rapid reductions in mercury air 
emissions. While this program has been recognized by EPA, the 
companies' success in reducing their mercury air emissions is 
nevertheless obscured by the facilities' overall reports of naturally-
occurring TRI chemicals in dirt and rock.
---------------------------------------------------------------------------
    \9\ See State of Nevada Mining Operations--Voluntary Mercury Air 
Emissions Reduction Program--Guidance Document, NDEP (Feb.2002). See 
also Attachment A to this testimony.
---------------------------------------------------------------------------
    In another example, the Colorado Mining Association and the 
Colorado Pollution Prevention Advisory Board recognized the incongruity 
of the standard P2 program and the mining industry, and developed an 
industry-specific P2 program identifying good management practices. 
10 While this program, too, has been recognized by EPA, it 
is not a standard ``P2'' program and had to be conceived outside the 
rubric of EPA's TRI program.
---------------------------------------------------------------------------
    \10\ For additional information on the Colorado Good Management 
Practices program, see A Code of Pollution Prevention Practices for the 
Mining Industry in the State of Colorado with Good Management Practices 
(CMA, May 2003), and Attachment B to this testimony.
---------------------------------------------------------------------------
    The mining industry is not the only one concerned about the TRI 
program. In 2002, as previously referenced, the WGA readopted 
11 a resolution recognizing that, with the 1997 expansion of 
TRI to new industry sectors, there was a heightened need ``to ensure 
that the reported data are communicated to the public in an 
understandable manner that includes a description of how these 
materials are managed so that actual releases to the environment, where 
public exposure may actually occur, are minimized.'' 12
---------------------------------------------------------------------------
    \11\ The Western Governors Association originally adopted on June 
19, 1999, Policy Resolution 99-003 related to TRI.
    \12\ Policy Resolution 02-19, Western Governors Association, June 
25, 2002.
---------------------------------------------------------------------------
    In short, what is needed and what the public sought when TRI 
originally was passed by Congress is a rational, common-sense reporting 
program.
Courts Imposing Rationality on TRI-Mining Relationship
    In the last several years, two major federal court decisions have 
imposed on the TRI-mining relationship a degree of rationality missing 
in EPA's approach. The decisions have upheld EPA's imposition of the 
TRI program on mining but have scaled back the scope of what mining 
facilities must report. In doing so, these decisions have recognized 
the public's legitimate right-to-know about the presence of man-made 
TRI chemicals at mining sites. The agency needs to conform its 
reporting regulations and policies to the court decisions to ensure 
that future TRI reports from mining facilities will give the public a 
clearer picture of chemicals of legitimate concern.
NMA v. Browner 13
---------------------------------------------------------------------------
    \13\ No.97-2665, Order and Memorandum of Decision (D.CO, Jan. 16, 
2001) and Order of Clarification (Mar.30, 2001)
---------------------------------------------------------------------------
    By operation of the EPCRA statute, TRI chemicals must be 
``manufactured'' before they can be ``processed''. When EPA imposed the 
TRI program on metal and coal mines in 1997, the agency declared that 
nature ``manufactured'' the naturally-occurring TRI substances and that 
the mines ``processed'' those naturally-occurring TRI chemicals, 
thereby triggering mines' TRI reporting obligations.
    In 2001, the U.S. District Court for the District of Colorado 
upheld EPA's imposition of TRI regulations on metal and coal mines. But 
the court found that EPCRA contemplates a human activity in the act of 
``manufacturing'' TRI chemicals. Thus, naturally-occurring TRI 
chemicals in the ore were not ``manufactured'' for TRI purposes by 
nature as EPA had contended. Since the EPCRA statute requires that a 
substance be ``manufactured'' before it can be ``processed'', the court 
enjoined EPA from applying the definition of ``processing'' to 
extraction and beneficiation of ores and minerals.
    While the court thus limited the scope of mining facilities' TRI 
reporting obligations, the agency in a series of letters shortly after 
this 2001 decision took the position that the industry still needed to 
report as before and that facilities had to decide for themselves 
whether they were ``manufacturing'' or ``processing'' TRI chemicals 
(recall that this is for an industry not specified in statute but 
brought into the program via EPA's regulations). While the letters 
were, at best, no more than questionable guidance (and not rulemaking), 
they ignored the court's order and injunction and created confusion as 
to what information mining facilities actually did have to report.
Barrick Goldstrike Mines v. Whitman 14
---------------------------------------------------------------------------
    \14\ No.99-958(TPJ) (DDC, April 2, 2003)
---------------------------------------------------------------------------
    In a separate lawsuit, Barrick Goldstrike Mines challenged EPA's 
imposition of TRI reporting requirements via guidance documents and 
letters. In April 2003, the U.S. District Court for the District of 
Columbia issued its opinion, holding for the company on several key 
matters. First, the court struck down EPA's interpretation that the TRI 
de minimis exemption did not apply to mines' waste (i.e., development) 
rock. Since many naturally-occurring TRI chemicals can be found at very 
low concentrations in such rock, this holding will help to reduce some 
of the ``noise'' created by mines' reporting large numbers of 
naturally-occurring chemicals in dirt and rock. 15
---------------------------------------------------------------------------
    \15\ However, this specific aspect of the Barrick Goldstrike 
decision, as to the applicability of the de minimis exemption to waste 
rock, may not apply where naturally-occurring TRI-listed chemicals are 
above de minimis thresholds. As such, significant naturally-occurring 
TRI-listed chemicals in rock and dirt may continue to be reported 
notwithstanding this very appropriate Barrick Goldstrike decision.
---------------------------------------------------------------------------
    Second, the court found that naturally-occurring metals and metal 
compounds that remained unchanged in Barrick Goldstrike's dore 
16 had not been ``processed'' as EPA asserted. The court 
looked to the NMA v. Browner decision--which EPA told the court it had 
accepted--and found that the naturally-occurring metals and metal 
compounds in the dore had not been ``manufactured''. Thus, again by 
operation of EPCRA section 313, these substances could not have been 
``processed''.
---------------------------------------------------------------------------
    \16\ Dore is a gold-silver mixture shipped for further refining 
(separation) into gold and silver metals for the commercial market. The 
dore contains naturally-occurring metals and metal compounds that the 
facilities do not remove prior to shipment; EPA took the position that 
Barrick had ``processed'' those metals and metal compounds and thus 
they were subject to reporting for TRI purposes.
---------------------------------------------------------------------------
Where do the two court decisions leave us?
    Mining facilities remain subject to TRI reporting requirements. 
Certainly as to TRI chemicals that mines ``otherwise use''--such as 
cyanide, sulfuric acid, and other man-made TRI chemicals used on-site--
mines have continued to report under TRI and are committed to providing 
the public with information about our use and management of these 
chemicals. In addition, to the extent that extraction and beneficiation 
operations at metal mines and beneficiation operations at coal mines 
might manufacture TRI chemicals, those chemicals also are subject to 
reporting.
    Naturally-occurring TRI chemicals that the mines do not manufacture 
and thus cannot process, however, should no longer be subject to TRI 
reporting. Removing these huge numbers of naturally-occurring chemicals 
entrained in dirt and rock should provide the public a clearer picture 
of TRI-listed chemicals at mines with which we understand the public 
has more interest. Application of the de minimis exemption to TRI 
chemicals in waste rock is a good starting point to achieve this goal.
Next Steps
    Thus far, EPA appears to be committed to making TRI--by rule, 
guidance, and other administrative action 17--generate the 
largest possible ``release'' numbers, thereby providing the public a 
distorted view of the Nation's mining industry.
---------------------------------------------------------------------------
    \17\ In a separate action last year, the agency denied NMA's 
petition to modify the TRI definition of ``overburden'' to conform to 
the generally-accepted definition of that term. EPA's decision meant 
the continuance of an unreasonably narrow exemption for TRI chemicals 
in overburden, i.e., metal mines had to continue to report naturally-
occurring TRI chemicals in dirt and rock. EPA defined overburden to 
include only ``unconsolidated'' materials. See 40 CFR Sec. 372.3. Where 
overburden is defined in recognized dictionaries or other federal 
programs, it is defined to include both unconsolidated as well as 
consolidated materials. See e.g., Dictionary of Mining, Mineral and 
Related Terms (Amer. Geological Inst. 1997); EPA Clean Water Act 
regulations 40 CFR 122.26(b)(10); Mine Safety & Health Administration 
regulations 30 CFR 56.2 and 57.2; Office of Surface Mining regulations 
30 CFR 701.5; Bureau of Land Management Reclamation Handbook (1992); 
Bureau of Indian Affairs regulations 25 CFR 216.3(c).
---------------------------------------------------------------------------
    Since 2001, EPA has asserted that it would engage in rulemaking to 
``clarify'' mining facilities' TRI reporting obligations in light of 
the NMA v. Browner decision. Based on the record, however, including 
agency letters and website postings, there is clear evidence that by 
``clarification'' EPA unfortunately may mean ``restoration'' of the 
same TRI reporting obligations for mining sites that the courts have 
rejected, including the reporting of large amounts of naturally-
occurring TRI chemicals in dirt and rock.
    The agency also has announced its intent to ``re-visit'' (i.e., 
apparently narrow) a number of reporting exemptions that have operated 
to impose a degree of rationality on TRI reporting. Many of these 
exemptions have been in place since EPA promulgated the original TRI 
regulations in 1988; all of these exemptions were put in place to 
reduce the burden on reporting facilities. Some examples of the 
exemptions include one for TRI chemicals used in the maintenance of 
fleets of vehicles, and one to exempt TRI chemicals involved in coal 
extraction activities.
    When EPA engages in further rulemaking, the agency's first 
obligation must be to align its regulations and policies with the 
results in the NMA v. Browner and Barrick Goldstrike decisions--
decisions the agency specifically decided not to appeal. The agency 
must not engage in rulemaking either to reinstate reporting obligations 
the courts have struck down or to eliminate burden-reducing exemptions.
    At a broader level, EPA and industry should work together so that 
TRI data are communicated to the public in an understandable manner, as 
specifically suggested by the WGA. It is unfair to the public for the 
agency to continue its annual ``dump'' of TRI data without providing 
adequate explanation and accurate context for the data. For mining 
facilities, where large numbers have been the norm, the misleading 
implications have been that mines are, indiscriminately and without any 
regulatory oversight, dumping vast quantities of toxic chemicals into 
the environment when, in fact, they have been placing dirt and rock in 
permitted and engineered materials management facilities. 18
---------------------------------------------------------------------------
    \18\ One straightforward step would be to modify the TRI program to 
conform to other federal environmental programs. ``Release'' should be 
defined consistently with how that term is employed in other 
environmental programs, i.e., if a substance does not escape the 
facility boundaries, or at least the boundaries of the containment 
unit, it is not a release to the environment. NMA recognizes this would 
require a statutory change, which is outside the context of this 
testimony.
---------------------------------------------------------------------------
                              Attachment A

     MERCURY REDUCTION PROGRAM AT MINES--A NEVADA VOLUNTARY PROGRAM

    A Toxics Release Inventory (TRI) chemical reported by several hard 
rock mine sites in Nevada in exceedingly small quantities in relation 
to the total ``releases'' reported is air releases of mercury. Mercury 
is a metal that occurs naturally in the Earth's crust, and is prevalent 
in the basin/range geologic province of Nevada where gold is found. 
There are no specific federal or state requirements for the control of 
mercury air emissions from hard rock mine facilities. Prior to 1995, 
Nevada's air regulatory program required that any source emitting 
greater than one pound per hour of any hazardous or toxic pollutant 
needed to install best available control technology; this requirement 
was deleted in 1995 but sites voluntarily continued to control such 
emissions, including mercury emissions. Even with these voluntary 
controls, hard rock sites in Nevada with thermal units reported about 
seven tons of mercury air emissions. These emissions were not included 
in the Environmental Protection Agency's (``EPA'') December 1997 
``Mercury Study Report to Congress.'' See Mercury Study Report to 
Congress. Volume II: An Inventory of Anthropogenic Mercury Emissions in 
the United States. EPA Report No. 452/R-97-004 (Dec. 1997). If these 
emissions were included in that report, the emissions reported for the 
Nevada mine sites would have made up slightly over four percent of the 
total mercury air emissions in the United States. As such, these 
reported releases raised questions by the State of Nevada and EPA 
Region IX on the potential human health and environmental impacts, and 
the need, if any, for additional emission controls.
    The Nevada Division of Environmental Protection (NDEP) has been 
delegated authority over various federal environmental laws, including 
the Clean Air Act, as well as administers Nevada's hard rock mining and 
reclamation law. NDEP conducted a study on the potential human health 
and environmental impacts in light of the reported mercury air 
releases. NDEP determined, in a report issued in November 2000, ``that 
there is currently no imminent and substantial public health threat 
associated with mercury emissions in the region.'' See Mercury 
Emissions From Major Mining Operations In Nevada, NDEP (Nov. 2000). 
Notwithstanding this report and its findings, NDEP entered into 
discussions with the four primary gold mining companies in the State 
about the possibility of a voluntary mercury reduction program (VMRP).
    NDEP eventually developed, in concert with four mining companies, a 
VMRP that was released in final form in February 2002. The VMRP is a 
State-sponsored voluntary initiative to provide maximum flexibility to 
obtain significant, permanent, and rapid decreases in mercury air 
emissions from precious metal sites in Nevada with thermal units. The 
program contains two approaches for reducing mercury emissions: (1) 
``MACT Equivalent Track'' (encourage companies to install certain 
identified controls that have been determined by EPA to be maximum 
available control technology equivalent); or (2) ``Process Modification 
Track'' (certain activities instituted to reduce mercury air emissions 
by 33% and 50% of an identified baseline by 2003 and 2005, 
respectively). Both EPA Region IX and EPA Headquarters have concurred 
in the VMRP, with EPA Headquarters specifying in a May 6, 2002, memo 
that ``[t]he program is consistent with the Agency's commitment to 
finding innovative approaches to managing air quality.''
    EPA Region IX recently recognized this voluntary program to reduce 
mercury air emissions. On April 22, 2003, Region IX awarded its 2003 
Environmental Achievement Award to NDEP and the four mining companies 
that volunteered for the program in recognition of the exceptional work 
and commitment to the environment. As such, a chemical reported under 
the TRI program that was identified by the federal and state government 
as of potential concern has been dealt with voluntarily and swiftly by 
the mining industry.

                              Attachment B

             TRI, MINING AND POLLUTION PREVENTION (``P2'')

    EPA has consistently tried to use the Toxics Release Inventory 
(TRI) program to support pollution prevention (P2) program efforts. For 
example, EPA annually analyzes the amount of TRI releases reported to 
identify trends and reductions in chemicals as a result of reporting 
facilities undertaking modifications or other actions to systems or 
procedures to reduce the amount of TRI listed chemicals reported 
annually. EPA also has noted that ``[c]ommunities use TRI data to begin 
dialogues with local facilities and to encourage them to reduce their 
emissions, develop pollution prevention (P2) plans, and to improve 
safety measures.'' 19
---------------------------------------------------------------------------
    \19\ See How Are the Toxics Release Inventory Data Used?--
government, business, academic and citizen uses. EPA Report No. EPA-
260-R-002-004 (May 2003) at p.1.
---------------------------------------------------------------------------
    The mining industry is unique in that the vast majority of reported 
TRI listed chemicals are naturally occurring substances in the rock, 
dirt, and other earthen material that is moved around a mine site, 
which does not lend itself to the typical P2 chemical reduction process 
that has occurred from other industries that report under the TRI 
program. A mine site cannot control the amount of naturally occurring 
TRI listed chemicals in the rock. It follows that only very limited 
opportunities exist for reducing reported chemicals unless mining 
operations switch from surface to underground (thereby reducing the 
amount of rock moved, but mine economics limit the availability of this 
option) or stop operations (thereby not moving any rock and eliminating 
any TRI reporting, not true P2 but a comparable outcome). Moreover, 
modifications in the type of chemicals brought onto a mine site and the 
concomitant reduction in the amount of reported ``releases'' typically 
is subsumed in the reported release of listed TRI chemicals naturally 
occurring in rock.
    The Colorado Mining Association (CMA) and the Colorado Department 
of Public Health and Environment's Pollution Prevention Advisory Board 
recognized the incongruity of the standard P2 program and the mining 
industry. The Pollution Prevention Advisory Board also wanted to 
recognize the activities already instituted by many mining companies as 
part of individually crafted P2 programs (e.g., change from hazardous 
to non-hazardous solvents based on review of material safety data 
sheets (MSDS)). As such, the Pollution Prevention Advisory Board in 
2001 awarded CMA a grant from the Pollution Prevention Fund to develop 
a tailored P2 program specific to the coal and hard rock mining 
industry in Colorado.
    Based on various investigations, including questionnaires to 
determine P2 practices already instituted at mine sites, a Code of 
Practice was developed and ultimately finalized in May 2002. See A Code 
of Pollution Prevention Practices for the Mining Industry in the State 
of Colorado with Good Management Practices, CMA (May 2002). The Code of 
Practice identified good management practices in four areas: hazardous 
chemicals; container management; conservation, recycling, and reuse; 
and closure and reclamation. The goal is for Colorado mining companies 
to voluntarily develop and implement (or document already instituted) 
customized site-specific management systems for the elimination of 
pollution.
    EPA Region VIII recently recognized this voluntary industry 
specific P2 program. On September 11, 2003, Region VIII awarded CMA its 
prestigious Friend of EPA Award. Regional Administrator Robbie Roberts 
presented the award, which according to EPA ``directly supports and 
assists EPA in performing its mission to protect public health and the 
environment'' and champions environmental protection in a proactive 
manner. As such, a specialized P2 program has been developed and 
implemented in recognition of the unique aspects of mining activities.
                                 ______
                                 
    Mrs. Cubin. Thank you, Mr. O'Connor.
    It's now my privilege to introduce Bonner Cohen. Dr. Cohen.

 STATEMENT OF BONNER R. COHEN, PH.D., SENIOR FELLOW, NATIONAL 
               CENTER FOR PUBLIC POLICY RESEARCH

    Dr. Cohen. Thank you very much, Chairman Cubin. Thank you 
very much for giving me the opportunity to testify here this 
afternoon.
    When considering the impact of the TRI on the mining of 
minerals industries, I want to focus my attention this 
afternoon on two aspects. The substance of the TRI and EPA's 
implementation of the EPCRA law.
    Regarding the substance of the TRI, it is important to bear 
in mind that the TRI is a volume-based inventory of releases 
into the environment. As such, it tells us very little about 
the actual possible human effects of human exposure to these 
trace elements of chemicals listed in the TRI.
    When the mining industry was added to the TRI by EPA in 
1997, problems surfaced. Those problems have their root in the 
unique aspects of the mining industry. As pointed out by the 
Chairman in her opening remarks, over 85 percent of the TRI 
listed metals that pertain to the mining industry are naturally 
occurring. When the EPA reports this, unfortunately the 
impression can come about that the greater public is being 
exposed to these toxic chemicals.
    When the court decisions in the year 2001 were handed 
down--specifically, the National Mining Association versus 
Browner--it was pointed out that the law does not require TRI 
reports of--and I quote--``naturally occurring compounds from 
mining operations.''
    Unfortunately, EPA has yet to make appropriate adjustments 
to its TRI reporting to conform with the court's decision. It 
was encouraging to hear the representative of EPA on the first 
panel say that the Agency is working on this. But the Agency 
has had 2 years to work on this and we still have information 
being released by EPA which is misleading. Indeed, according to 
the Western Governors Association, the information being 
released by EPA continues to be, and I quote, ``misrepresented, 
mischaracterized, and reported out of context, causing 
widespread and unnecessary concerns in States and local 
communities.''
    The resulting misleading picture is not what Congress had 
in mind when it initially passed the law in 1986. Indeed, I 
think it's important to put this in a larger context and 
recognize how misleading the TRI can be in other respects. Let 
me very briefly cite the example of dioxin.
    Dioxin is, albeit in trace amounts, ubiquitous in the 
environment. It is the result of combustion, uncontrolled 
burning, and certain industrial processes. As a result of 
Federal regulations and vast improvements in technology, 
emissions of dioxin have been reduced, according to EPA's own 
data, by 92 percent since 1987.
    Indeed, as a result of the progress that has been made in 
reducing dioxin emissions from the industrial sector, it turns 
out that the largest source of dioxin in the United States 
today is forest fires.
    The second largest source of dioxin in the United States is 
the largely unregulated practice of trash burning, backyard 
trash burning, prevalent in rural areas of the United States. 
While industrial sources are continued under the TRI, or to be 
required to report their emissions, their declining emissions 
to EPA, somehow the public does not seem to have a right to 
know about the real sources of dioxin emissions in the United 
States, indeed, the largest sources of dioxin emissions.
    It seems that, if we're looking at this program, there is 
considerable room for improvement on the part of EPA's 
implementation of this statute. The EPA should be a body which 
disseminates information, not designed to spread unnecessary 
fear to local communities. The EPA should be disseminating 
information that provides the kind of data on which people 
living near facilities covered under the TRI can base their 
decisions.
    By failing 2 years after the court decision of 2001 to 
conform its TRI information to the court's directive, EPA has 
not served the public interest. I do not think it is good 
public policy to have an agency disseminating the kind of data 
that could only be misinterpreted and, indeed, can lead, in the 
case of the mining industry, to the demonization not just of an 
industry but in a whole part of the country where that industry 
is centered.
    Thank you very much. I would be happy to answer any 
questions later on.
    [The prepared statement of Dr. Cohen follows:]

          Statement of Bonner R. Cohen, Ph.D., Senior Fellow, 
               National Center for Public Policy Research

    I want to take this opportunity to thank Chairman Cubin for the 
privilege of addressing the important issue before us this afternoon.
    In approving the Emergency Planning and Community Right-to-Know Act 
(EPCRA) in 1986, Congress intended to provide the public with general 
information on the amount of a particular chemical ``released'' into 
the land, air, water, or those transferred off-site for treatment or 
disposal. Such data are contained in an annual report published by the 
U.S. Environmental Protection Agency (EPA) under the name ``Toxic 
Release Inventory'' (TRI). At present, some 650 chemicals and 
substances are covered under the TRI, and industries falling under the 
statute's jurisdiction are required to report releases by facility to 
EPA.
    In this regard, it is important to keep in mind what the TRI is and 
what it is not. The TRI is a volume-based inventory that tells us 
nothing about risk resulting from human exposure to the trace elements 
of chemicals contained in the report. Furthermore, the TRI does not 
distinguish between actual releases to the environment and substances 
managed at facilities. This leads to the emergence of a very misleading 
picture of the ``releases'' at industrial facilities, including those 
of the mining industry.
    In 1997, EPA expanded the TRI to seven new industry sectors, 
including the electric utility, coal and mineral mining industries--all 
of which have large volumes of materials. Over 85 percent of the volume 
of all materials reported by mining operations are trace amounts of 
TRI-listed metals that occur naturally in the soil and rock involved in 
exploration, excavation and other activities. These materials are 
managed on site and remain within the boundaries of the facility. As 
such, mining, as well as utility, operations do not create the kind of 
public exposure to substances TRI reporting was intended to address.
    In 2001, the U.S. District Court for the District of Columbia found 
in National Mining Association V. Browner that the EPCRA does not 
require TRI reports of ``naturally occurring compounds'' from mining 
operations. However, to date, EPA has failed to conform the TRI program 
to the court's directives. As a result, EPA's published data on the TRI 
releases of the mining and utility industries do not inform the public, 
they mislead it.
    Indeed, according to the Western Governors Association, EPA's TRI 
reporting of naturally occurring compounds and substances that are 
managed and controlled by multiple state and federal regulatory 
programs ``continues to be misrepresented, mischaracterized, and 
reported out of context causing widespread and unnecessary concern in 
states and local communities.'' This, the WGA notes, ``has resulted 
unfairly in Western states being characterized as badly `polluted'.''
    How misleading the TRI can be can be seen in the example of dioxin. 
Dioxin, albeit in trace amounts, is ubiquitous in the environment. It 
is the inevitable byproduct of incineration, uncontrolled burning, and 
certain industrial processes. Regulatory restrictions on emissions, 
coupled with dramatic strides in industrial technology, have led to 
sharp declines in dioxin in the environment. EPA's own data show a 92 
percent reduction in dioxin emissions since 1987. While industrial 
sources of dioxin continue to report their releases to EPA for the TRI, 
it should be noted that the greatest source of dioxin in the United 
States is--forest fires. The giant infernos cutting a swath of death, 
destruction, and environmental degradation across the West are also 
putting substantial amounts of dioxin into the environment.
    The nation's second biggest source of dioxin is the largely 
unregulated practice of backyard trash burning. Yet, somehow, the 
public doses not seem to have a ``right to know'' about these non-
industrial emissions of a TRI-listed substance.
    Given EPA's refusal to conform the TRI to the court's directives in 
National Mining Association V. Browner, and in the related case of 
Barrick V. Whitman, it is imperative that Congress exercise its 
oversight responsibilities and direct the agency to make appropriate 
changes in its TRI reporting. EPA should not be engaged in 
disseminating misleading information that needlessly causes concern to 
the public. The agency should take immediate steps to improve its 
implementation of the EPCRA and ensure that the public discourse on 
environmental policy is not itself polluted.
    Thank you very much.
                                 ______
                                 
    Mrs. Cubin. Thank you, Dr. Cohen.
    Now I would like to recognize Meghan Purvis.

  STATEMENT OF MEGHAN PURVIS, ENVIRONMENTAL HEALTH ASSOCIATE, 
              U.S. PUBLIC INTEREST RESEARCH GROUP

    Ms. Purvis. Thank you for the opportunity to testify today 
on the Toxic Release Inventory program and the mining industry.
    My name is Meghan Purvis, and I am an Environmental Health 
Associate for U.S. Public Interest Research Group, the Federal 
advocacy office for the State PIRGs. State PIRGs are 
nonpartisan, nonprofit, State-based public interest advocacy 
groups with a strong stake and history in advocating for the 
public right to know.
    Today, I will summarize my written testimony previously 
submitted to the Subcommittee.
    The public debate around TRI should be focused on the 
public's right to know and not on the complaints of the 
potential burden to the worst industry in the program, an 
industry that releases billions of pounds of chemicals linked 
to cancer, neurological and developmental problems, chemicals 
such as mercury, arsenic and lead.
    The State PIRGs are here today to address the strong public 
support for the TRI program and make the point that the purpose 
of the TRI program is to allow citizens access to information 
about the toxic chemicals released into their environment that 
could potentially have a devastating effect on their health.
    First I would like to debunk the myth that we've heard 
today, that mining industries merely move rock and dirt and do 
not affect any of the naturally occurring toxins in that rock. 
Disposal of waste rock and subsequent releases of toxic 
chemicals can be compared to the everyday example of making 
coffee. If whole beans are used, the coffee in the pot is very 
weak. When these same beans are ground up, however, the 
resulting coffee is much stronger.
    Unfortunately, the mining industry creates a toxic brew by 
grinding up waste rock that contains billions of pounds of 
toxic chemicals. Chemicals like arsenic, lead and mercury 
become bioavailable during the mining process. These chemicals 
have been linked with serious health effects and the public 
should always know about their releases.
    Since the inception of the TRI program, the public has 
expressed overwhelming support. From the Christ the Servant 
Lutheran Church in Nevada, to SEIU Local 100 in Louisiana, a 
wide range of constituencies see and have recognized the 
importance behind the public's right to know. In fact, over 700 
groups have spoken out about the importance of right-to-know 
and have expressed their support for the TRI program.
    The TRI program is often considered one of the most 
successful programs at the EPA and has been credited with 
initiating a decrease of nearly 50 percent in toxic releases 
reported by original industries since 1986. Much of this 
decrease has come from voluntary reductions by industry in 
response to public outcry over Toxic Release Inventory data.
    This decrease of releases may have a positive effect on our 
Nation's health. More science is emerging linking the growing 
rates of chronic disease in our country to environmental 
exposures to toxic chemicals. A ground-breaking 2000 study 
found that the environment played the principal role in causing 
sporadic cancer. This same study attributed 25 percent of the 
causation of breast cancer to the environment.
    We hope that the mining industry follows the lead of other 
industries and looks for ways to reduce their releases of 
carcinogens, neurological and developmental toxicants. Three of 
the primary toxic chemicals released by the mining industry are 
arsenic, mercury and lead. In 2001, the mining industry 
released 335 million pounds of arsenic, a readily recognized 
poison, known human carcinogen, and developmental toxicant. 
Workers exposed to arsenic in mines have an elevated risk of 
developing lung cancer, as do people who live near waste sites 
that contain arsenic.
    Also in 2001, 4 million pounds of mercury, a potent 
neurological toxicant, were released by the mining industry. 
Mercury from mines can contaminate groundwater, making its way 
into fish, which is the primary root of human exposure. In 
fact, in this country, one out of every twelve women of child-
bearing age has mercury blood levels high enough to trigger an 
increased risk of neurological damage to any child that she has 
in the future.
    The dangers of another neurotoxicant, lead, have been known 
for decades, and the metal mining industry is a leader, 
releasing 335 million pounds of lead in 2001. According to 
biomonitoring reports, some children already have blood lead 
levels that are associated with a greatly increased risk of 
neurocognitive disorders. The CDC has previously reported that 
there is no safe level of lead.
    The TRI program has been praised by a variety of 
stakeholders, and so it is rather surprising to hear today the 
criticisms of the mining industry representatives of the TRI 
program. The chemical industry in particular has publicly 
praised the success and intention of the program. In 1990, Tom 
Ward, a representative of Monsanto Corporation, was quoted in 
Iowa recognizing that the law is having an incredible effect on 
industries to reduce emissions, and that's good. There is not a 
chief executive officer around who wants to be the biggest 
polluter in Iowa.
    In conclusion, the issue today is really not that 
complicated. As the EPA launches into a proposed rulemaking 
surrounding the mining industry and its continued challenges to 
TRI, it is critical to continue to hold forthright the main 
purpose of the TRI program. The program and the public debate 
surrounding TRI should be about the public's right to know 
about the large amounts of toxic chemicals released by the 
worst industry in the country.
    The State PIRGs urge the Subcommittee to emphasize how EPA 
and Congress can further the public's right to know, and not 
focus on the complaints by the leading releaser of toxic 
chemicals.
    Thank you.
    [The prepared statement of Ms. Purvis follows:]

      Statement of Meghan Purvis, Environmental Health Associate, 
            U.S. Public Interest Research Group (U.S. PIRG)

    Thank you for the opportunity to testify today on the Toxic Release 
Inventory program and the mining industry. My name is Meghan Purvis, 
and I am an Environmental Health Associate for U.S. Public Interest 
Research Group. U.S. PIRG is the federal advocacy office for the State 
PIRGs. State PIRGs are nonpartisan, nonprofit, state-based public 
interest advocacy groups with a strong stake and history in advocating 
for public Right-to-Know issues.
    We support the subcommittee's attention to expose the mining 
industry's continued efforts to claim exemption from the TRI program. 
Their schemes would keep the public in the dark about the billions of 
pounds of pollution the mining industry is responsible for every year. 
Despite the fact that in the year 2000, mining companies released 3.4 
billion pounds of toxic chemicals into the environment, or nearly half 
of all the releases reported to the TRI program, the companies and 
industry organizations have time and again fought to claim exemption 
from one of the nation's most successful public information programs.

BACKGROUND OF TRI
    Congress established the Toxics Release Inventory program in 1986 
as a part of the Emergency Planning and Community Right-to-Know Act 
(EPCRA). The TRI requires industries to disclose releases of toxic 
compounds into the air, water and land, as well as provide the public 
with information about toxic chemicals in their community on an annual 
basis. According to the Conference Report from the passage of EPCRA, 
Congress intended to ``provide the public with important information on 
hazardous chemicals in their communities.'' 1 Clearly, the 
purpose of the TRI program is to allow citizens access to information 
about the toxic chemicals being released into their environments that 
could potentially have a devastating effect on their public health.
---------------------------------------------------------------------------
    \1\ H.R. Conf. Rep. No. 962, 99th Cong., 2dSESS. (1986), ``Joint 
explanatory statement of the Committee of Conference.''
---------------------------------------------------------------------------
    The mining industry was added late to the TRI program, and has been 
required to report their releases since 1998. Since then, however, the 
mining industry has quickly established themselves as the nation's 
biggest source of reportable toxic releases, releasing 2.8 billion 
pounds of toxic chemicals in 2001. The mining industry was one of the 
top industrial polluters of lead, mercury and arsenic in 2001. In 
addition, according to the TRI program, the top ten worst polluting 
facilities for all releases were all from the mining industry.

STRONG PUBLIC SUPPORT FOR TRI
    Since the inception of the TRI program, the public has expressed 
overwhelming support both for the program itself as well as the general 
principal of community right-to-know. From the Christ the Servant 
Lutheran Church in Nevada, to the Gray Panthers of Wisconsin, to the 
SEIU Local 100 in Louisiana, a wide range of constituencies have 
recognized the importance behind the public's right to know about toxic 
chemicals released into their air, water and land. In fact, when 
legislation was introduced in Congress in 1997 to greatly expand the 
right-to-know program to include consumer products, chemicals in the 
workplace, and the impact of toxics on children, more than 700 groups 
in total spoke out about the importance of right-to-know and expressed 
their support of the TRI program.
    In addition, the public readily believes in their right to know 
about toxic releases in their communities. In public opinion research 
conducted by the Pew Charitable Trusts, respondents articulated they 
felt strongly about their right to pollution information. One man from 
Carson City, Nevada, reported: ``I think that I would just like to be 
informed about things that could be potential problems, so that at 
least I would have the knowledge to make a decision to do something 
about it or not...I would just like to have information about what the 
government is doing, just so I can make my own decision.'' 2
---------------------------------------------------------------------------
    \2\ ``Public Opinion Research on Public Health, Environmental 
Health, and the Country's Public Health Capacity to Adequately Address 
Environmental Health Problems,'' conducted for the Pew Charitable 
Trusts by the Mellman Group, Inc. and Public Opinion Strategies, Inc, 
May 1999.
---------------------------------------------------------------------------
HIGH SUCCESS OF THE TRI PROGRAM
    The TRI program is often considered one of the most successful 
programs at the Environmental Protection Agency. This is a model piece 
of legislation for states and cities that wish to expand their 
citizens' right-to-know about toxic chemical releases. The TRI program 
has been credited with initiating a voluntary decrease in toxic 
releases reported to the program, may have subsequently protected 
public health, and has been praised by public interest advocacy groups 
and industry leaders alike.

PROTECTING PUBLIC HEALTH
    The dramatic drop in releases reported to TRI should have a 
positive impact on the health of the American public. More science is 
emerging every day linking the growing rates of chronic disease in this 
country with environmental exposures to toxic chemicals. A 
groundbreaking 2000 study, for example, published in the New England 
Journal of Medicine, found that the environment played ``the principal 
role in causing sporadic cancer.'' This same study attributed 25% of 
the causation of breast cancer to the environment. In addition, the 
National Academy of Sciences found that toxic exposures cause at least 
3% of all developmental disorders and learning disabilities facing our 
nation's children, and may play a role in an additional 25%.
    According to a U.S. PIRG Education Fund study of TRI data released, 
releases to air and water by the original TRI industries (not including 
the mining industry) of carcinogenic chemicals listed over that entire 
period declined by 41 percent between 1995 and 2000. Developmental 
toxicant releases were down by 47 percent, reproductive toxicant 
releases by 49 percent, releases of suspected neurological toxicants by 
31 percent and releases of suspected respiratory toxicants by 23 
percent. 3
---------------------------------------------------------------------------
    \3\ ``Toxic Releases and Health,'' U.S. PIRG Education Fund, 
January 2003.
---------------------------------------------------------------------------
    Unfortunately, once the mining industry began reporting the public 
heard of the large amounts of harmful chemicals it has been releasing 
into the environment that have been linked to cancer, developmental and 
reproductive problems, and neurological problems. Three of the primary 
toxic chemicals released by the mining industry, according to their 
reports to TRI, are arsenic, mercury and lead. These chemicals are 
highly toxic, with well-proven ties to harming human health. We hope 
that the mining industry could follow the lead of other industries that 
report to TRI and eventually find ways to reduce the amount of its 
releases.
    In 2001, the mining industry released 335 million pounds of 
arsenic, a readily recognized poison, known human carcinogen, and 
developmental toxicant, into the environment. Some arsenic compounds 
readily dissolve in water, and easily contaminate rivers and lakes. The 
Agency for Toxic Substances Disease Registry warns that soil around 
mining sites contains elevated levels of arsenic, and that people that 
live near elevated soil levels may be exposed to arsenic through their 
drinking water. 4
---------------------------------------------------------------------------
    \4\ Agency for Toxic Substances and Disease Registry, ``Public 
Health Statement for Arsenic,'' September 2000.
---------------------------------------------------------------------------
    Arsenic can cause a range of illnesses and even death if exposure 
is in a high dosage. In lower continuous exposures, as is often the 
case with releases over time due to hard rock mining, arsenic can 
damage the circulatory and peripheral nervous systems. The Department 
of Health and Human Services, EPA, and National Toxicology Program have 
all found that arsenic is a known human carcinogen. Arsenic has been 
linked to cancer of the skin, bladder, and lungs, and may be linked to 
cancers of the liver, kidney, and colon. Workers that are exposed to 
arsenic in mines have an elevated risk of developing lung cancer, as do 
people who live near waste sites that contain arsenic. Arsenic can also 
cross the placenta of a pregnant woman, causing exposure and harm to 
the fetus.
    Also in 2001, 4 million pounds of mercury were released by the 
mining industry. Mercury is a potent neurological toxicant, and, if 
present in the blood of a pregnant mother, can harm the development of 
a fetus. Mercury from mines can contaminate groundwater, making its way 
into fish, where it accumulates in the fat tissue. The primary route of 
human exposure to mercury is through eating contaminated fish. 
According to a report by U.S. PIRG and Environmental Working Group, if 
an American woman ate 12 ounces of fish a week, recommended by the Food 
and Drug Administration, they would expose nearly one-fourth of all 
babies born each year to potentially harmful levels of mercury. 
5 In addition, one out of every twelve women of childbearing 
age in the United States already has mercury blood levels high enough 
to trigger an increased risk of neurological damage to any children 
they may have. 6
---------------------------------------------------------------------------
    \5\ U.S. PIRG and Environmental Working Group, ``Brain Food: What 
Women Should Know About Mercury Contamination in Fish,'' April, 2001.
    \6\ Centers for Disease Control, ``Second National Report on Human 
Exposure to Environmental Chemicals,'' January 2003.
---------------------------------------------------------------------------
    The dangers of another neurotoxicant, lead, have been known for 
centuries, and the metal mining industry is a leader in lead releases. 
The mining industry released 335 million pounds of lead in 2001. 
Exposure to lead has been linked to reduced IQ and cognitive 
development in children, as well as behavior alterations, even at 
extremely low levels. Children are both more vulnerable to lead 
exposure as well as more sensitive to the effects of lead than adults. 
7
---------------------------------------------------------------------------
    \7\ ATSDR, ``Public Health Statement for Lead,'' August 1997.
---------------------------------------------------------------------------
    Lead has been found at elevated levels in the blood of humans 
through the tool of biomonitoring. The Second National Report on Human 
Exposure to Environmental Chemicals, released by the Centers for 
Disease Control and Prevention in January of 2003, reported that 2.2% 
of children ages 1-5 had blood lead levels that exceed the CDC 
recommendations. These blood levels are associated with an increased 
risk for neurocognitive disorders. Blood lead levels of 1-5 year olds 
were the highest of any other age group in the U.S. population, 
although among adults, blood lead levels do increase with age. 
8 Most of the lead in the human body accumulates in bone 
tissue, where it can remain for several decades after exposure. 
9
---------------------------------------------------------------------------
    \8\ Centers for Disease Control and Prevention, ``Second National 
Report on Human Exposure to Environmental Chemicals,'' January 2003.
    \9\ ATSDR, ``Public Health Statement for Lead,'' August 1997.
---------------------------------------------------------------------------
    Some communities are all too familiar with the negative health 
consequences of the mining industry. Libby, Montana, is a community 
plagued with negative health effects due to vermiculite mining 
activities near their town. The vermiculite deposits in Libby contained 
asbestos, which was released during the vermiculite mining process. 
Inhalation of asbestos fibers has been linked to the development of a 
variety of lung diseases, including asbestosis, mesothelioma, and 
cancer. 10 In fact, community activists report that an 
overwhelming number of people that live in the town suffer from lung 
abnormalities, and called for a government health study. 11 
ATSDR conducted a mortality study of the community from 1979 to 1998, 
and found the residents had an increased mortality rate resulting from 
asbestosis of approximately 40 to 60 times higher than expected. 
12 Clearly the community of Libby, Montana, knows firsthand 
the devastating impacts of the mining industry on human health.
---------------------------------------------------------------------------
    \10\ ATSDR, ``Vermiculite Overview,'' available at http://
www.atsdr.cdc.gov/asbestos/vermiculite--overview.html.
    \11\ Benefield, Gayla, Lincoln County Asbestos Victim's Relief 
Organization. Reply to questionnaire solicited by Meghan Purvis, 4 
November, 2002.
    \12\ ATSDR, ``Health Consultation: Mortality from Asbestosis in 
Libby, Montana, 1979-1988,'' available at http://www.atsdr.cdc.gov/HAC/
PHA/libby/lib--p1.html.
---------------------------------------------------------------------------
    By continuing to include all of the releases the mining industry is 
responsible for in the TRI program, the public will continue to be 
better informed as to how to protect their own health.

TOXICS USE REDUCTION
    Since the establishment of the program in 1986, toxic emissions 
continuously reported since that time has dropped by nearly 50%. There 
are many reasons that could explain this reduction in toxics released 
to the environment, including the fact that between 1995 and 1998, for 
example, the number of companies reporting releases to TRI declined by 
nearly 6 percent. 13 An even greater impact, illustrated by 
numerous examples, is the fact that companies and industries have bowed 
to public pressure and begun to actually reduce their releases. For 
this reason, the mining industry cannot be let off the hook and evade 
its public responsibility to let the communities know what it is 
releasing into our environment.
---------------------------------------------------------------------------
    \13\ EPA, Summary of 1998 Toxics Release Inventory Data, downloaded 
from www.epa.gov/ tridata/tri98/data/1998datasumm.pdf, 15 October, 
2002.
---------------------------------------------------------------------------
    Many corporations and facilities have responded positively to their 
inclusion in the TRI program. AK Steel Company's Butler Works plant is 
a perfect example of the power of public information. In 1999, PennPIRG 
released a report that highlighted the high levels of nitrate compounds 
in the Connoquenessing Creek in Pennsylvania, by using data made 
available by TRI. 14 In 2000, the Butler plant was 
reportedly the worst water polluter in the country. As a result of its 
appearance at the top of the charts in the TRI data, and public 
pressure, however, AK Steel changed its processes to restrict the use 
of nitric acid, and reduced its nitrate discharges by 72.9 percent. 
Within one year, the facility dropped from first to third on the list 
of the nation's largest water polluters. 15 Even more 
remarkable is the fact that this change by a single actor caused 
releases in water in Pennsylvania to drop by over 58 percent from 2000 
to 2001. In the case of AK Steel, the TRI provided the incentive to 
clean up, greatly reducing the amount of toxic chemicals released in 
Pennsylvania, and protecting public health.
---------------------------------------------------------------------------
    \14\ ``Protecting Pennsylvania's Waterways,'' Pennsylvania Public 
Interest Research Group, 1999.
    \15\ Roebuck, Karen, ``AK Steel cleans up pollution record,'' 
Pittsburgh Tribune-Review, July 14, 2003.
---------------------------------------------------------------------------
INDUSTRY SUPPORT AND PRAISE
    Time and again, leaders in other industries that are required to 
report their emissions to TRI have publicly spoken out in support of 
the TRI program. The chemical industry in particular has praised the 
success and intention of the program. In 1990, Tom Ward, a 
representative of Monsanto Corporation, was quoted in Iowa recognizing 
that ``the law is having an incredible effect on industries to reduce 
emissions, and that's good. There's not a chief executive officer 
around who wants to be the biggest polluter in Iowa.'' 16
---------------------------------------------------------------------------
    \16\ Ward, Tom, Monsanto Corporation; Quad City Times (Iowa), June 
8, 1990.
---------------------------------------------------------------------------
    Other executives have recognized the positive impact the TRI 
program has had for their businesses. Ciba Geigy's Corporate 
Environmental Report released in 1993 reported that: ``The initial 
demand for environmental reporting came from the public. But in 
responding, we have discovered that the information is extremely useful 
to our own management. We have learned about our successes, our 
inadequacies and the gaps in our knowledge. It's a good example of the 
way in which external pressures ultimately prove to benefit both the 
environment and the industry.'' 17 Randy Hinton, of Vinings 
Industries in Marietta, Georgia, even admitted in 1991 ``in the long 
run it [the TRI program] has saved us money.'' 18
---------------------------------------------------------------------------
    \17\ Ciba Geigy, Corporate Environmental Report, 1993.
    \18\ Hinton, Randy, Vinings Industries; The Atlanta Constitution, 
August 22, 1991.
---------------------------------------------------------------------------
    In addition, many companies use their progress in toxics use 
reduction documented in the TRI program as a public relations tool. 
Many companies now include an environmental report on their websites, 
as they recognize the positive image and public popularity a good 
environmental record brings them. Boeing Company includes TRI data on 
its website, reporting how overall releases have been declining. Boeing 
then makes a pledge to ``invest and innovate in pollution prevention 
programs,'' and lead the progress of all industry in the reduction of 
pollution. 19 Whether this statement is true, or not, is not 
the point. Rather, many corporations recognize and highlight the 
success of the TRI program and their part in it.
---------------------------------------------------------------------------
    \19\ Boeing Company, ``People Reaching Solutions: Measures and 
Results: Boeing Company Facts'' available at http://www.boeing.com/
aboutus/environment/eval--results.htm.
---------------------------------------------------------------------------
    It is rather surprising, then, that the mining industry has taken 
the opposite reaction to their inclusion in the program of other 
polluting industries. Instead of working to reduce their emissions and 
recognizing the benefits the program could have to their businesses, 
specific companies and industry representatives have challenged the 
basis of the program itself, through lawsuits and other public records. 
In 1998, the National Mining Association challenged the TRI program in 
a lawsuit against EPA, and in 1999 Barrick Goldstrike Mines Inc. sued 
Administrator Whitman in an attempt to limit the amount of toxic 
release information the public can access.
    Instead of claiming the program provides a burden to the industry, 
mining companies should be looking for ways the program provides 
benefits to their industry. Mining companies should stop fighting these 
popular right-to-know initiatives, and instead recognize the public 
approval they could win by complying with the law.
THE TRI PROGRAM AS A COMMUNITY TOOL
    Communities across the country have been able to use the 
information provided through the TRI program to protect their own 
health from toxic pollution. In 1994, the Working Group on Community 
Right-to-Know published a list of nearly 200 published reports using 
TRI data, most released by community groups. 20
---------------------------------------------------------------------------
    \20\ Working Group on Community Right-to-Know, ``Reports Using 
Toxic Release Inventory Data,'' July 1, 1994.
---------------------------------------------------------------------------
    In Louisiana, community members have used TRI data to highlight 
potential health risks in two regions of the state: the Mississippi 
River corridor, known as ``cancer alley,'' and the Lake Charles region. 
A collection of small community organizations in these two regions have 
been able to employ the data to confront industries and companies 
responsible for the health-threatening pollution. In 2000, some of 
these community groups released a report entitled Breathing Poison: The 
Toxic Costs of Industries in Calcasieu Parish, Louisiana. Without 
access to this information, these community organizations would be 
unable to study potential causes of health problems in their 
communities. 21
---------------------------------------------------------------------------
    \21\ TRI Program Division, EPA, ``How Are the Toxics Release 
Inventory Data Used?'' May 2003, 8.
---------------------------------------------------------------------------
    In Massachusetts, Massachusetts Public Interest Research Group 
(MASSPIRG) used the TRI program to launch a public accountability 
campaign in 1990 against Raytheon Corporation. TRI data reported that 
Raytheon was responsible for releasing the largest amounts of CFCs and 
methyl chloroform in Massachusetts. Later, Raytheon promised MASSPIRG 
it would switch the chemicals it used to those options less harmful to 
the environment and to public health.

PAINTING A BETTER PICTURE: THE LEAD RULE
    In January 2001, the EPA lowered reporting thresholds for lead and 
lead compounds. In response to the potential dangers lead poses as a 
substance to the environment and human health, the EPA lowered the 
reporting threshold from using 25,000 pounds to releases 100 pounds. In 
2001, 443 million pounds of lead were reported released by every 
industry (the mining industry released 335 million pounds, or 76 
percent of all lead releases), up from 374 million pounds in 2000. 
Lowering the lead rule triggered more facilities to report their lead 
releases, informing more people of the issue of lead released in their 
community.
    Many industry groups, however, have complained about the ``burden'' 
of the lead rule, and claim it puts too much of a strain on their 
companies to comply with the lowered reporting threshold. The EPA and 
the NMA are currently involved in a rulemaking dialogue about the 
burden of various changes in reporting requirements, with the NMA 
claiming the burden reduction proposed by the EPA is actually an 
``increase in burden.'' 22 It is often difficult for public 
interest groups to quantify in dollars the benefit the public gains 
from something as abstract as the direct impact of the lead rule. It 
may be pertinent to point out, however, that while NMA claims the ICR 
renewal is underestimated, and will cost industry more than the $7.56 
million the EPA has estimated it will cost, health care costs for many 
of chronic diseases linked to chemicals reported in the TRI program are 
soaring. The Center for Disease Control and Prevention reports that 
health care for chronic diseases costs the nation $750 billion 
annually. 23
---------------------------------------------------------------------------
    \22\ NMA Written Comments RE: Docket ID No. OEI-2003-0025, 
September 2, 2003.
    \23\ Center for Disease Control and Prevention, ``Chronic Disease 
Overview,'' August 30, 2002, http://www.cdc.gov/nccdphp/overview.htm.
---------------------------------------------------------------------------
CONCERN OVER THE MINING INDUSTRY
    It is with great concern that we watch individual mining companies 
and the mining industry overall challenge the public's right to 
information about the environment that could have major impacts on 
their health.
    The mining industry has a long history of attempting to reduce this 
overwhelmingly popular Right-to-Know program, and has repeatedly sued 
EPA over their inclusion in the program. Specifically, and perhaps most 
alarmingly, the National Mining Association has submitted comments on 
the Information Collection Request renewals challenging EPCRA's 
definition of what constitutes a release of toxic chemicals. NMA, 
despite vast scientific proof of its impact on public health, wants to 
exclude land releases from EPA's proposed definition of uncontained 
releases. 24
---------------------------------------------------------------------------
    \24\ NMA Written Comments RE: Docket ID No. OEI-2003-0025, 
September 2, 2003.
---------------------------------------------------------------------------
    Mining officials will constantly tell you, they merely ``move 
rock,'' and do not change any of the naturally occurring toxins in that 
rock. This simple ``movement,'' however, initiates a release into the 
environment of toxic chemicals that would have never been exposed to 
our waterways or the air if it had not been for the process of mining. 
The disposal of waste rock and subsequent release of toxic chemicals 
can be compared to the everyday example of making coffee. If whole 
coffee beans are used, the coffee in the pot is very weak. If these 
same beans are ground up in a grinder, however, and the grounds are 
used in the same process, the resulting coffee is much stronger. 
Unfortunately, however, the mining industry does not leak coffee from 
its ground-up waste rock. Instead toxic chemicals like arsenic, lead, 
mercury, iron, copper, aluminum, and cadmium are all exposed during the 
grinding process and subsequently become bioavailable. These chemicals 
have been linked with serious health effects, and the public should 
always know about their releases.

SUGGESTIONS FOR RULEMAKING
    As the EPA launches into a proposed rulemaking surrounding the 
mining industry and its continued challenges to TRI, it is critical to 
continue to hold to the goal of the TRI program: to ``empower citizens, 
through information, to hold companies and local governments 
accountable in terms of how toxic chemicals are managed.'' 
25 The issues at stake should not be focused on the 
complaints of the ``burden'' of the reporting program by the worst 
industry included in the program; the issues are about the public's 
right-to-know what is released in their communities and the burden that 
mining pollution imposes on.
---------------------------------------------------------------------------
    \25\ EPA, ``What is the Toxic Release Inventory Program?'' 
available at http://www.epa.gov/tri/whatis.htm, June 2002.
---------------------------------------------------------------------------
    Specifically, two key points must be addressed by the EPA 
rulemaking later this year: first, the EPA must clarify that the ``de 
minimis'' exemption does not apply to chemicals that add up to large 
quantities, as is the case with the chemicals the mining industry 
releases. Hundreds of millions of pounds of some of the most toxic 
chemicals known to science is hardly a trivial matter, and the mining 
industry must report every pound of these immense amounts.
    Second, every section of the process of mining must be included in 
the activity that is covered under EPCRA. As previously stated, 
disposing of waste rock causes the release of toxic chemicals not 
previously available to escape into the environment, and into our 
communities. Every action the mining industry takes in its mining 
process disturbs the environment, and potentially causes harm to those 
living around it. Because of this, the communities that surround mines 
have an explicit right to know about every chemical the mining industry 
is responsible for causing the release of, and the TRI program applies 
to every action the mining industry takes.

CONCLUSION
    In conclusion, the issue we are here to discuss today is really not 
complicated. Even though many witnesses will argue about procedural 
details, and complain about burdens to industry, it is important to 
hold forthright the main purpose of the TRI program. The program, and 
this hearing, should be about the public's right-to-know about the 
toxic chemicals released by the worst polluting industry in the 
country.
    The mining industry has led the country's polluters in releases 
reported to TRI for four years in a row. Clearly, this is not an 
accomplishment the industry is proud of. The mining industry, however, 
should look for ways to protect public health and reduce its releases, 
instead of spend endless energy and resources in fighting the TRI 
program.
    In addition, the TRI program must continue to inform the public 
about toxic releases in communities across the country. EPA has worked 
to expand the program to give the public, citizen groups, environmental 
organizations, industry, the press, regulators, the government, and 
international bodies pertinent information about their communities. EPA 
and Congress must work to continue to protect the public, and expand 
the TRI program at every level.
                                 ______
                                 
    Mrs. Cubin. I want to make a couple of comments before I 
ask a question. I just have to respond to the statement the 
``worst industry in the country.'' I think that type of speech 
is exactly what we are opposed to. It misrepresents facts and 
it's a plea to everyone's emotions. As a matter of fact, it 
seems like--I'm sorry, Miss Purvis, but most everything that 
you said in your testimony tends to just rile up emotions.
    I believe that people have a right to know, but I believe 
people have a right to know accurate information. I believe 
that they have a right to have a picture of the entire process 
that we're talking about, not just, as Dr. Cohen stated, these 
toxic are measured by volume. So the fact that they're measured 
by volume and interaction with people, it really doesn't 
represent an accurate picture.
    I guess what this reminds me of is the public's right to 
know accurate information. What TRI has evolved into is typical 
of the EPA, unfortunately, in my opinion, that if it's worth 
doing, it's worth overdoing. That's exactly what seems to be 
happening here.
    I guess I'm just a little bit speechless about the last 
testimony, because I find it inaccurate and misleading, and I'm 
sure others of you can approach that issue better.
    I would like to ask Dr. Allen, have you examined the draft 
issue papers on metals released by the EPA this week?
    Dr. Allen. I have started to look at them. I have not 
looked at all of them yet.
    Mrs. Cubin. According to what you have looked at, can you 
give your impressions on the soundness of the science in those 
papers so far?
    Dr. Allen. For the most part, what I have seen in those and 
in other similar things has been very good. It's a step forward 
into understanding and putting forth that bioavailability and 
the potential toxicity need to be taken into account when 
setting up programs, the various programs that EPA does.
    Mrs. Cubin. When talking about the worst industry in the 
country--and it's called that because of the amount of dirt 
that it moves--I wonder how farming relates in the State of 
Iowa. Just because it isn't moved from one pile to another, 
certainly you're moving the dirt. That's just a little 
observation.
    Mr. O'Connor, it's my understanding that the mining 
industry is not asking EPA to remove mining sites from TRI; is 
that correct?
    Mr. O'Connor. Madam Chairman, you are correct. What we are 
asking for--and we do support the public's right to know, but 
it's the right to know chemicals and provide to them 
information on man-made chemicals and materials on our sites 
that they truly have a right to know about, and then can make 
appropriate decisions thereof.
    Mrs. Cubin. I know if the public knew that, when we were 
talking about the volume of toxic materials that are just moved 
from the mine to another pile, I know for sure they wouldn't 
feel that their health is at risk as much as they feel it is 
now, just based on the bits and pieces of information that are 
put out as the truth. Well, when you just put little bits of 
information out, it can actually be the antithesis of the 
truth. I think that's the case with what we've heard today.
    Dr. Cohen, are there any other examples of programs or 
rules where you think the EPA has misused science?
    Dr. Cohen. One comes to mind. EPA adopted, in 1993, a rule 
allowing--a policy, actually--allowing so-called municipal 
sludge--it's the 501(3) rule--to be used as fertilizer on 
farmland, forests, and for mine reclamation. Municipal sludge 
is a polite term for human waste and other unmentionables, if 
you will. It has been used as fertilizer.
    EPA scientists looked at what the Agency was proposing to 
do and raised many questions. The questions they raised were 
very interesting. They asked themselves, is this actually going 
to harm public health because of the composition of this 
material? Could certain segments of the population, if it came 
in contact with this, once this stuff has been put down, if a 
wind comes along and blows it, if people come near it and 
inhale it, will they be affected by this?
    These scientists then asked the Agency, before it 
promulgated the policy, to carry out a risk assessment. The 
Agency never carried out that risk assessment and, indeed, 
promulgated the policy in the mid-1990s.
    Over the course of the last several years, there have been 
reports of hundreds of people having been taken ill, two 
deaths, one of which was in Pennsylvania, the case of a young 
boy, 8 years old, who rode a three-wheeler across a field which 
had just been covered with so-called Class B sludge. He died 3 
years later. I had the very unpleasant experience of meeting 
his parents around a year ago, when they were here in 
Washington trying to draw EPA's and Congress' attention to the 
death of their son.
    Hundreds of counties across the United States have banned 
the use of this municipal sludge. They have banned the use of a 
product that EPA still maintains is safe. Clearly, there is a 
problem here, and it is a problem where EPA scientists said one 
thing but EPA, for the lack of a better term, bureaucrats, 
officials, in the headquarters here in Washington, D.C., did 
something else.
    Even worse, the Agency has undertaken incredible measures 
to silence its critics, both internally and externally. 
Internally, the scientist, Dr. David Lewis, who raised the 
concerns about allowing municipal sludge to be spread close to 
communities, is no longer with EPA. He was effectively 
terminated in May of this year.
    Externally, EPA officials, including the gentleman who was 
the most largely responsible for developing the sludge program, 
actually sent a death threat to a woman in California, a dairy 
farmer, handwritten, concluding that ``For whom the bell 
tolls''--the woman's name was Jane. ``Jane, for whom the bell 
tolls, it tolls for thee.'' This gentleman, by the way, is 
still on the payroll of the U.S. Environmental Protection 
Agency, even after his message to this woman had been printed 
in Time Magazine about 2 years ago.
    So that is one example of the misuse of science at EPA. It 
is something, by the way, that transcends whichever 
administration happens to be in power, whether it's the current 
one, the preceding one, or the one before that.
    EPA needs to pay much closer attention to its scientists. 
It needs to pay much closer attention to the criticisms that 
have been leveled at the Agency from its Science Advisory 
Board. Our environmental policies should be based on sound 
science, and when that is not the case, the public suffers. And 
in the case of the 501(3) sludge rule, hundreds of people, as I 
say, have been taken ill. Livestock have died and two or three 
people have actually died as a result.
    Mrs. Cubin. Thank you.
    Miss Purvis, just a yes or no answer. Would you like to see 
all mining in the United States eliminated?
    Ms. Purvis. No.
    Mrs. Cubin. Thank you.
    Mr. Gibbons.
    Mr. Gibbons. Thank you very much, Madam Chairman.
    I actually am very pleased to hear the witnesses today sort 
of debunk the emotional nonsense that came out of the U.S. 
Public Information Research Group.
    First of all, let me ask Mr. O'Connor here, does the mining 
industry have to comply with environmental rules with regard to 
air quality, water quality, dust standards, et cetera, at a 
mine?
    Mr. O'Connor. Madam Chairman, Representative Gibbons, yes, 
sir, we do. All of the plethora of Federal environmental 
statutes that are on the books we have to comply with. On top 
of that, you have State counterparts and you also have State 
mining and reclamation laws that we have to comply with.
    On top of that, if activities are being conducted on either 
the Bureau of Land Management administered lands or U.S. Forest 
Service administered lands, you have yet another series of 
requirements that you must comply with.
    Mr. Gibbons. So really, the claim that it's releasing all 
of this material into the environment is really a fallacy 
because it's controlled, it's in a controlled environment, it's 
in a contained area, whether it's waste rock, mill tailings, or 
standard chemicals that are used by a mine?
    Mr. O'Connor. You are correct, Representative Gibbons.
    Mr. Gibbons. Dr. Cohen, according to your testimony, the 
worst industry in the United States then would be the sewer and 
sludge industry and not the mining industry, because obviously 
people have died from that.
    Dr. Cohen. I don't know whether it's the worst industry or 
not, but it would certainly be an industry which has developed, 
shall we say, a very cozy relationship with the Environmental 
Protection Agency, something that I would love to see a 
congressional committee look into. Because I can assure you, as 
someone who has been following this issue for some time, what 
they will discover between the career officials at EPA and the 
sludge industry will turn your stomach.
    I can also assure you--and I'm privy to some information 
here--that this coming Sunday, in 20 newspapers around the 
country, there will be an article reporting both on the misuse 
of science at EPA regarding sludge, the abuse of an EPA 
scientist by career officials in the Agency who tried to shut 
him up when he brought this issue to their and to the public's 
attention, and the consequences of this policy around the 
country. It is going to throw a very unflattering light on EPA. 
As somebody who has followed and written about this issue for 
some time, it is long overdue. It is probably the biggest 
scandal that the Agency has ever been involved in.
    Mr. Gibbons. Dr. Cohen, you have been published and have 
written extensively about environmental issues in this country. 
Is it your opinion that the millions of people that have been 
affected and have disease due to high lead standards or arsenic 
standards are all due to the mining industry?
    Dr. Cohen. Oh, no. Human exposures to all sorts of things 
come from all sorts of sources.
    Mr. Gibbons. So a blanket assertion that two million people 
with high lead content in their blood related to the mining 
industry is simply a fallacy?
    Dr. Cohen. As a matter of fact, the biggest source of lead 
in the blood, of course, comes from lead-based paint in older 
buildings in older parts of the country. We have known this for 
a long, long time.
    The most sensible policy here, of course, is to remove the 
lead-based paint and the people, mostly children in this case, 
who have been exposed to that. That's the most sensible way to 
do this, rather than simply condemn a particular industry which 
in the process of excavation or exploration moves some rock 
around. Without a doubt, the biggest exposure to lead is lead-
based paint in older buildings, particularly residential units.
    Mr. Gibbons. Dr. Allen, looking at moving waste rock around 
and putting it in a confined environmental situation, whether 
it's lined in a tailings pond or lined in a rock waste area 
controlled environment, do you see that removal of waste rock 
at a mining site as a serious problem to the environmental 
conditions of this planet?
    Dr. Allen. Certainly there are significant effects on the 
environment with mining. The most serious ones are likely not 
the release of metals from those materials but other factors, 
other environmental----
    Mr. Gibbons. Mine seepage?
    Dr. Allen. Mine seepage.
    Mr. Gibbons. Water coming out of the ground that is----
    Dr. Allen. Most of the releases from that, in a modern 
facility, can be controlled.
    Mr. Gibbons. Right. So it's the older facilities, for the 
most part?
    Dr. Allen. A lot of it is the older facilities. There will 
be some release, I think, from all materials from my back yard, 
from the soil in my back yard. Every time it rains, there are 
metals carried off in that rainwater from that soil.
    Mr. Gibbons. How about highway construction? I mean, I'm 
looking at 495 right out here. I have yet to hear the U.S. 
Public Information Research Group complain about this highway 
moving all of this dirt that's right next to the Potomac, which 
in the Potomac has endangered species, the Atlantic sturgeon 
and a number of other species, they don't complain about that. 
They don't list the highway and the road construction industry, 
which moves multiple times the amount of dirt around in this 
environment without putting it in a contained environment, as 
one of the toxic release villains of this country.
    Dr. Allen. We get concerned about the sediment loads 
released from that. The sediment loads can be an important 
problem in itself. But the release of metals and other 
contaminants or other materials naturally contained in the soil 
and roadway are not of major concern to anyone. They aren't 
even looked at.
    Mr. Gibbons. Madam Chairman, my time is up, but I would 
assume that if we took the highway construction industry and 
the farming industry of this Nation and put them under the same 
restrictions and requirements of the mining industry, we could 
put this country into a Third World Nation status.
    Thank you.
    Mrs. Cubin. Thank you, Mr. Gibbons.
    Mr. Udall.
    Mr. Tom Udall. Thank you, Madam Chair, and I thank the 
members of the panel.
    Dr. Allen, in your testimony you put forth that only 
bioavailable chemicals may ``cause a toxic response.'' Does the 
process the mining industry uses to grind up and dispose of 
waste rock make the chemicals in that rock more or less 
bioavailable than they were when the rock was in the ground?
    Dr. Allen. It increases the bioavailability. However, only 
a small fraction of all of the rock that is moved or processed 
becomes bioavailable. So to say that all of the material that 
is mined or is left over from the mining operation is toxic is 
not correct.
    Mr. Tom Udall. But it does become more bioavailable by the 
grinding and exposing it to the surface?
    Dr. Allen. Yes. In general, it increases it.
    Mr. Tom Udall. I think the thrust of the testimony here is 
that in certain cases these chemicals, or these toxic 
substances, be it mercury, lead or arsenic, escape from the 
areas where they're mined. I mean, there is a good example of 
mining companies and lead pollution in the Coeur d'Alene-
Spokane River in Idaho and Washington, where virtually 179 
children living within an area of an abandoned mine, the Bunker 
Hill silver mine up there, were found to have brain-impairing 
levels of lead in their blood. So that's the kind of thing I 
think there's a concern about. And you acknowledge that?
    Dr. Allen. Yes.
    Mr. Tom Udall. Mr. O'Connor, in your testimony you said it 
is somehow unfair to the public that they get all the 
information that the TRI has been providing without, as you 
describe it, ``context.''
    Are you saying the mining industry rather than citizens 
themselves should determine what is and what is not a risk to 
public health?
    Mr. O'Connor. Mr. Chair, Mr. Udall, no, sir. What I am 
indicating is one of putting the numbers into context such that 
the public understands them. We at most of the mines have 
outreach programs for which we have discussed our mining 
activities, be it from exploration through closure.
    Those outreach programs have been very beneficial. The 
communities that we work in have been very appreciative of 
those types of outreach programs.
    When the TRI numbers came out, a number of the same public 
that we have been engaged with and had dialog with came back 
and were concerned, because they're very proud of the areas 
they live in and were exceedingly concerned over the large 
quantities of numbers that were being reported, given the fact 
that some of them actually did recall way back to 1986 when the 
law was enacted and the basis for it, given chemical plant 
problems, et cetera.
    So we continue the dialog and explain that what we're 
reporting is the naturally occurring substances in the rock 
that we move around a site, how it's tied up in the matrix of 
the rock, and therefore the exposure to them is nowhere near 
the exposure, or even at all the exposure that you would have 
from a chemical plant disaster.
    Once we were able to provide them additional information 
that the EPA's annual putting out of the numbers doesn't 
address, it provided a context for those numbers and provided 
the public a better understanding of what is occurring in their 
communities, such that again they can figure out how different 
things are impacting or not impacting them where they live.
    Mr. Tom Udall. Clearly, it is important that the public 
understand the full ramifications, but I do not think there is 
any doubt that private citizens are fully capable of 
understanding the impacts of chemicals like arsenic, mercury, 
and lead. I think the public is well aware that there are many 
studies and very tragic circumstances, one of which I named 
here earlier, this Bunker Hill Silver Mine, which is a 
Superfund site. They are capable of making the connection that 
if these chemicals are out there and they escape from these 
mine sites, you can have some pretty serious damage.
    You mentioned in your testimony that the mining companies 
have to comply with environmental requirements. But I do not 
see that that means a lot when, in fact, we have 87 Superfund 
sites that are former mines and you have the Superfund sites 
which have been designated, they are considered a hazard, they 
are having to be cleaned up. And so they complied at the time, 
I guess, with environmental requirements, but we today look 
back and see these Superfund sites, and we think that they 
ought to be cleaned up.
    Seeing my time is up, I yield back to Mr. Gibbons, who is 
now our Chairman. Thank you, Mr. Gibbons.
    Mr. Gibbons. [Presiding.] Thank you, Mr. Udall. And may I 
say also that there is no doubt that the mining industry 
historically has had some bad practices. I do not think you can 
label the operation and practices of the past, the current 
operation and practices of today, and the future mining of this 
country. They are totally different. Mining companies today are 
far more responsible. And speaking of the Bunker Hill and the 
release of that arsenic, I can say that there is probably more 
arsenic being released today by Yellowstone National Park and 
the geysers into the water system there, yet we do not require 
the National Park System or Mother Nature to file a Toxic 
Release Inventory for that, even though it is contaminating the 
water as well. And that is a naturally occurring situation.
    Mr. Tom Udall. Just to correct the record, it is lead we 
were talking about on Bunker Hill that is in the kids' bodies, 
not arsenic.
    Mr. Gibbons. And that was actually from the smelter that 
was produced right there, which is no longer in operation 
today.
    With that, I want to thank our panel again for their time 
here before us. We have to call up the third panel, and I want 
to again thank each of the members of our panel for presenting 
their testimony today.
    Mr. Gibbons. The next panel we will call up is Panel 3: Mr. 
Richard Bye, who is the Director, Environmental, Safety and 
Industrial Health, Texas Genco L.P.; Fern Abrams, Director of 
Environmental Policy, IPC, the Association Connecting 
Electronics Industries; and Lexi Shultz, Mineral Policy Center.
    I want to thank all of you for your presence here today. I 
look forward to your testimony, as does the rest of the 
committee, and we will start with Mr. Richard Bye, Director of 
Environmental, Safety and Industrial Health, Texas Genco.

 STATEMENT OF RICHARD T. BYE, DIRECTOR, ENVIRONMENTAL, SAFETY 
            AND INDUSTRIAL HEALTH, TEXAS GENCO L.P.

    Mr. Bye. Thank you, Mr. Chairman, Representative Udall. 
Good afternoon. My name is Richard Bye, and I am here on behalf 
of Texas Genco, the Utility Solid Waste Activities Group, and 
the Edison Electric Institute. Thank you for inviting me here 
to testify on this important issue.
    Electric utilities have been subject to TRI reporting since 
1999. We have learned in that time that through the use of 
creative definitions, the TRI information provided to the 
public is often highly misleading and results in undue public 
concern about activities that are safe, legal, and often 
promoted as environmentally beneficial by other parts of EPA 
and many State agencies.
    The TRI program sorely needs a truth-in-reporting standard 
in which words are given the meaning used by ordinary citizens 
in everyday communication. Let me give you two examples of 
EPA's word games.
    Our industry generates large volumes of nonhazardous 
byproducts from the combustion of coal and other fossil fuels 
at our electric generating facilities. In 2001, we generated 
about 118 million tons of coal combustion byproducts, of which 
roughly one-third were beneficially used. These coal combustion 
products, or CCPs, are the byproducts that are diverted from 
disposal for use in a variety of commercial applications. CCPs 
that are not beneficially used are managed as a waste in 
landfills or surface impoundments.
    EPA requires that the entire volume of each TRI reportable 
chemical that is properly managed in a waste management unit be 
reported as a release into environmental media. This use of the 
term ``release'' to describe successful waste management 
connotes that the waste is not contained by the engineered and 
regulated structure. The message the public receives is that 
the entire volume of waste has somehow escaped to the 
environment, much like an oil spill. In effect, the message EPA 
has been sending to the public implies a total structural 
failure of the disposal unit. Thus, the EPA data of land 
releases is actually a report on quantities of waste 
successfully managed within a disposal unit while any migration 
of waste out of the disposal unit and into the environment, if 
that were to occur, is not reported and disclosed to the public 
because those quantities were already reported as being 
released when they were placed into the disposal unit. This 
means that the TRI form fails to collect data on issues that 
might be of concern to the community, while providing 
misleading data about well-managed facilities and suggests an 
environmental problem when none exists.
    My second example of creative definitions relates to the 
definition of ``beneficial use.'' In this case, EPA equates 
recycling and beneficial use of secondary materials with waste 
disposal rather than with processing a product for distribution 
in commerce. That means when we use CCPs for soil 
stabilization, for construction fills, for mine reclamation, 
and highway construction, EPA takes the position that this is 
waste management, subject to TRI reporting as releases. 
However, if the user were to substitute virgin material 
containing the same TRI chemicals found in CCPs, they would not 
have to report. So instead of receiving a pat on the back from 
EPA for practicing good environmental stewardship, utilities 
are subjected to burdensome TRI reporting that unfairly places 
a waste stigma on CCPs that inhibits beneficial use of these 
materials.
    This position is in complete contradiction to pro-
beneficial use policies adopted by other parts of EPA and other 
agencies. For example, this past year, as part of its resource 
conservation challenge, EPA established an initiative called 
the ``Coal Combustion Products Partnership,'' or C2P2, with a 
goal of diverting CCPs from land disposal and reducing 
greenhouse gas emissions by increasing the beneficial use of 
CCPs. The TRI Program's characterization of CCP beneficial use 
applications as waste management, with all of the regulatory 
burdens attached, is one of the largest regulatory barriers to 
increased CCP utilization.
    In conclusion, we urge the Subcommittee to send a clear 
signal to EPA that all parts of the Agency, including the TRI 
Program, should get on board with the Agency's commitment to 
increase beneficial use of CCPs and thereby minimize the volume 
of those materials that require waste disposal. We will do our 
part to achieve greater beneficial use of CCPs, but that goal 
is far more difficult to achieve when the TRI Program plays the 
word games that I have described. All we ask is that CCPs be 
subject to the same reporting rules that apply to competing 
products.
    Thank you very much.
    [The prepared statement of Mr. Bye follows:]

   Statement of Richard T. Bye, Director of Environmental Safety and 
 Industrial Health, Texas Genco, Edison Electric Institute, and Chair, 
Ash Management & Solid Waste Committee, Utility Solid Waste Activities 
                                 Group

    My name is Richard T. Bye and I am the Director of Environmental 
Safety and Industrial Health for Texas Genco. I am pleased to present a 
statement on behalf of Texas Genco, the Edison Electric Institute 
(``EEI''), and the Utility Solid Waste Activities Group (commonly known 
as ``USWAG''), where I serve as Chair of the Ash Management & Solid 
Waste Committee.
    EEI is an association of U.S. shareholder-owned electric companies, 
international affiliates and industry associates worldwide. Our U.S. 
members serve roughly 90 percent of the ultimate customers in the 
shareholder-owned segment of the industry, nearly 70 percent of all 
electric utility ultimate customers in the nation, and generate nearly 
70 percent of the electricity produced in the United States.
    USWAG is a consortium of EEI, the American Public Power Association 
(``APPA''), the National Rural Electric Cooperative Association 
(``NRECA''), and approximately 80 electric utility operating companies 
located throughout the country. APPA is the national association of 
publicly owned electric utilities. NRECA is the national association of 
rural electric cooperatives. Together, USWAG members represent more 
than 85 percent of the total electric generating capacity of the United 
States and service more than 95 percent of the nation's consumers of 
electricity.
    Let me first commend the Subcommittee for holding this oversight 
hearing on the TRI Program. TRI is a program that has been in existence 
for more than a dozen years, although electric utilities did not become 
subject to TRI reporting until 1999. Our industry has long supported 
the aims of the TRI Program. We believe that the communities in which 
we operate should be informed about the chemicals we handle at our 
plants that affect the environment. However, what has troubled us about 
the TRI Program is the way in which EPA publishes inaccurate 
information to the public by distorting the plain meaning of words 
found on the TRI reporting form. Through the use of ``creative'' 
definitions, TRI information received by the public is often highly 
misleading and results in undue public concern about activities that 
are safe, legal and promoted as environmentally-beneficial by other 
parts of EPA and many state environmental agencies. What the TRI 
Program sorely needs is a ``Truth in Reporting'' standard in which 
English words are given the meaning used by ordinary citizens in 
everyday communication.
    Let me give you one example. Our industry generates large volumes 
of byproducts from the combustion of coal and other fossil fuels at our 
electric generating facilities. In 2001, we generated approximately 118 
million tons of coal combustion byproducts. Of this amount, 
approximately 32% were beneficially used as coal combustion products, 
also known as ``CCPs.'' CCPs are the byproducts that are diverted from 
disposal for use in a variety of commercial applications, such as 
cement and concrete production, road base material, snow and ice 
control, construction fills, wallboard production, waste stabilization 
and solidification, and agricultural soil amendment. CCPs that are not 
beneficially used must be managed as a waste--typically in a dedicated 
landfill or in a surface impoundment on utility property.
    Under TRI, we are required to report the total volume of coal 
combustion byproducts placed in engineered waste management units as a 
``release'' that is ``entering'' the environment, even though those 
units are designed, regulated, and properly operated to prevent the 
release and migration of constituents to soil and groundwater. Even 
when such waste byproducts are transferred to off-site commercial 
facilities for disposal in engineered waste management units, EPA 
requires the utility to report such a transfer as an off-site 
``release,'' giving the false impression that constituents in the 
materials are in some way escaping from the disposal unit.
    EPA's use of the term ``release'' to describe successful waste 
management in an engineered unit connotes that the waste material is 
not contained by the engineered and regulated structure. In fact, the 
current EPA requirement is that the entire volume of each TRI 
reportable chemical that is properly managed in land disposal waste 
management unit must be reported as a ``release'' into environmental 
media. The message the public receives when it hears the word 
``release'' is that the entire volume of waste has somehow escaped to 
the environment--like an oil spill. In effect, the message EPA has been 
sending to the public when it publishes its annual Public Data Release 
implies a total structural failure of the disposal unit.
    What is strange about the current TRI reporting system is that the 
regulated community is expected to report as a ``release'' the total 
quantity of TRI chemicals successfully managed within a land disposal 
unit. But if the landfill were to have a structural defect and 
constituents in the waste were to migrate out of the unit into adjacent 
soil or groundwater--what most would call a ``release'' in every day 
English--those chemicals that escape from the unit would not be 
reported because they have already been reported along with the volumes 
that remain safely within the disposal unit. Thus, the current TRI form 
fails to collect data on issues of plausible concern to the community 
while providing misleading data about well-managed facilities that 
suggest the existence of an environmental problem when none exists.
    Let me acknowledge that EPA recently took a small step in the 
direction of correcting this problem. On July 1, 2003, EPA proposed to 
amend the reporting form to distinguish between ``contained disposal'' 
and ``uncontained releases.'' 68 Fed. Reg. 39074. While this proposed 
change is a step in the right direction, it simply does not go far 
enough to cure public misperceptions. Instead of allowing the regulated 
community to base its reporting of the TRI chemicals managed in waste 
disposal units on whether the chemicals, in fact, were being contained 
or whether they were migrating out of the unit, EPA made advance 
categorical judgments as to the types of waste management units that 
qualify as ``contained disposal'' and those units that require 
reporting of the contents as ``uncontained releases.'' EPA decided that 
all landfills and all underground injection wells qualify as 
``contained disposal'', while the coal combustion byproducts placed in 
surface impoundments and ``other land disposal'' units, whether or not 
the waste is actually contained, must be reported as ``uncontained 
releases.'' This makes no sense. If a facility is designed and 
constructed to contain the TRI chemicals in waste disposed at that 
facility and has successfully done so, why should that disposal be 
classified by EPA and reported to the public as an ``uncontained 
release''?
    The definition of ``release'' is not the only word game played by 
EPA in administering the TRI Program. A second example involves EPA's 
interpretation of beneficial use to equate recycling and beneficial use 
of secondary materials with waste disposal rather than with processing 
a product for distribution in commerce. Although the industry has 
successfully diverted about 32% of CCPs generated from waste disposal 
for use in such commercial applications as cement and concrete 
production, soil stabilization, structural fill, mine reclamation, and 
highway construction, the TRI Program interprets such activities as 
waste management subject to TRI reporting as ``releases''. At the same 
time, however, if a company chooses not to use CCPs in these 
applications, but rather uses virgin material containing the same TRI 
chemicals, it is subject to much less stringent reporting requirements. 
The TRI Program, therefore, is discouraging the beneficial commercial 
applications of CCPs by requiring such applications to be reported as a 
``release'' into environmental media. So instead of receiving a ``pat 
on the back'' from EPA for practicing good environmental stewardship in 
diverting what would otherwise require waste disposal into a well-
established beneficial use application, utilities are subjected to 
burdensome TRI reporting that unfairly places a ``waste stigma'' on 
CCPs that inhibits increased beneficial use of these materials.
    When Congress enacted the Resource Conservation and Recovery Act in 
1976 (popularly known as RCRA), it established as national policy a 
mandate for EPA to ``maximize the utilization of valuable resources 
including energy and materials which are recoverable from solid waste 
and to encourage resource conservation.'' RCRA Sec. 4001, 42 U.S.C. 
Sec. 6941. As part of its implementation of the Bevill Amendment to 
RCRA, EPA addressed the subject of beneficial use of CCPs on several 
occasions. In 1993, EPA announced that the ``Agency encourages 
utilization of coal combustion byproducts and supports State efforts to 
promote utilization in an environmentally beneficial manner.'' 58 Fed. 
Reg. 42466, 42490 (Aug. 9. 1993). In May of 2000, EPA announced that it 
wished to avoid ``unnecessary barriers on the beneficial use of fossil 
fuel combustion wastes so that they can be used in applications that 
conserve natural resources and reduce disposal costs.'' 65 Fed. Reg. 
32214 (May 22, 2003).
    Rather than build on these policies to promote beneficial use, the 
TRI Program has done the opposite. First, by affixing the ``waste 
management'' label to long-established and environmentally safe 
beneficial use applications, the TRI Program imposes a regulatory 
burden on the marketing of CCPs that immediately places CCPs at a 
competitive disadvantage vis-a-vis competing materials. In a 1994 
Report to Congress, the U.S. Department of Energy identified the 
``waste'' label as one of the most significant impediments to increased 
beneficial use of CCPs. See U.S. Dept. of Energy, Report to Congress, 
Barriers to the Increased Utilization of Coal Combustion/ 
Desulfurization Byproducts by Governmental and Commercial Sectors, p. 
17 (July 1994). In addition, because the beneficial use activity is 
classified as ``waste management'' rather than ``processing for 
distribution in commerce'' (the label typically applied to management 
of a product containing TRI chemicals destined for commercial 
distribution), EPA's de minimis rule does not apply. This rule, in 
effect, exempts products (but not wastes) from TRI reporting if the 
concentrations of the TRI chemicals in the product (other than certain 
carcinogens) are below 1%.
    EPA's strange interpretation rewards the unnecessary use of virgin 
materials with an interpretation that avoids TRI reporting, while 
penalizing the environmentally protective use of CCPs by subjecting 
them to TRI reporting. The virgin material and CCPs are used in the 
same way and they often contain the same or similar TRI chemicals. But 
under TRI, only the application of CCPs are classified as waste 
management and subject to full reporting. This is a classic case of one 
part of EPA working at cross purposes with other parts of the Agency.
    On a positive note, EPA has taken several additional steps to 
implement its commitment to increased utilization of CCPs. EPA has used 
its authority under section 6002 of the Resource Conservation and 
Recovery Act to promote government procurement of products containing 
CCPs such as cement and concrete containing coal fly ash (47 C.F.R. 
Sec. 247.12(c)), flowable fill containing coal fly ash (id. 
Sec. 247.12(i)), railroad grade crossing surfaces containing coal fly 
ash (id. Sec. 247.12(j)), parking stops made from concrete containing 
coal fly ash (id. Sec. 247.13(b)), and has proposed adding blasting 
grit made with coal slag and bottom ash and concrete and cement made 
with fly ash cenospheres to the list. 66 Fed. Reg. 45256 (Aug. 28, 
2001).
    As part of its broader Resource Conservation Challenge, EPA 
recently established an initiative called the Coal Combustion Products 
Partnership or C2P2, which is aimed at diverting CCPs from land 
disposal and reducing greenhouse gas emissions by increasing the 
beneficial use of CCPs through a series of coordinated public and 
private efforts. C2P2 involves two main areas of activity: (1) a 
Challenge Program directed at potential users of CCPs, informing them 
of the attributes and beneficial uses of CCPs and encouraging them to 
increase the use of CCPs; and (2) Barrier-Breaking Activities, designed 
to better understand obstacles to beneficial uses of CCPs and to 
identify both government and private initiatives to address those 
obstacles. The TRI Program's characterization of CCP beneficial use 
applications as waste management, with all the regulatory burdens that 
follow from that characterization, is one of the largest regulatory 
barriers to increased CCP utilization.
    Through its CCP policy statements and initiatives, EPA has 
demonstrated its strong commitment to reduce the unnecessary disposal 
of CCPs by actively promoting and removing the barriers to CCP 
beneficial use. These positive efforts, however, are undermined by the 
TRI Program's improper characterization of CCP beneficial use 
applications as ``waste management.''
    In conclusion, let me urge the Subcommittee to send a clear signal 
to EPA that all parts of the Agency, including the TRI Program, should 
``get on board'' with the Agency's commitment to increase beneficial 
use of CCPs and thereby minimize the volume of those materials that 
require waste disposal. We will do our part to achieve greater 
beneficial use of CCPs, but that goal is far more difficult to achieve 
when the TRI Program plays word games by describing beneficial use as 
another form of waste disposal and then applies waste reporting 
requirements to CCP uses that do not apply to competing products. All 
we ask is that CCPs be subject to the same reporting rules that apply 
to competing products.
                                 ______
                                 
    Mr. Gibbons. Thank you very much, Mr. Bye.
    We will turn now to Ms. Abrams. You are welcome before the 
committee. The floor is yours.

  STATEMENT OF FERN ABRAMS, DIRECTOR OF ENVIRONMENTAL POLICY, 
     IPC--THE ASSOCIATION CONNECTING ELECTRONICS INDUSTRIES

    Ms. Abrams. Thank you. My name is Fern Abrams. I am the 
Director of Environmental Policy for IPC, which is the trade 
association for the electronic interconnection industry. Our 
members use lead solder to manufacture and assemble printed 
circuit boards, the backbone of our Nation's high-tech 
industries, including consumer, industrial, and defense 
electronics.
    IPC members support cost-effective environmental 
regulations which are based upon sound scientific and economic 
analysis. Environmental regulations that are not based on such 
analysis often create unnecessary burdens while failing to 
achieve their goal of environmental protection. And as we have 
heard today and I am going to highlight, there are some 
concerns that the TRI Program has morphed into such a 
regulation.
    EPA's regulation lowering the TRI reporting threshold for 
lead from 25,000 pounds down to just 100 pounds took effect on 
April 17, 2001, and it included an unprecedented retroactive 
application of the reporting requirements back to January 1, 
2001. Equally unprecedented was EPA's decision to put the 
proverbial cart before the horse by basing the regulations on 
the questionable application of inappropriate scientific 
criteria, promising to conduct an ex post facto Science 
Advisory Board review after the rule had been promulgated.
    The lowered reporting thresholds have imposed significant 
burdens. According to EPA's own analysis, which is likely 
underestimated, the cost of compliance for new reporters in the 
electronics industry was $7,400 per facility in the first year 
alone. This is a significant sum of money for U.S. 
manufacturers facing fierce global competition. According to 
EPA, the information collected and subsequently distributed 
through EPA outreach and awareness programs is provided at a 
relatively low cost compared to the value it represents to the 
general public.
    Examination of the data will cause even the casual observer 
to question this statement. The lowered reporting threshold for 
lead significantly increased the reporting burden, but has 
resulted in little useful data. In 2001, over 8,000 TRI forms 
were filed for lead and lead compounds. Of these, 3,000 
facilities reported zero releases of lead to the environment. 
Many more reported negligible amounts.
    In the electronics sector, which I represent, 54 percent of 
the TRI forms filed for lead reported zero pounds released. 
Surely, this cannot be EPA's idea of a cost-effective 
regulation.
    Concerns regarding the enormous burdens of the TRI lead 
rule have been repeatedly raised, both before and after its 
adoption. In the 2-1/2 years since, EPA has repeatedly failed 
to reduce the burden of compliance. In a May 2001 letter, EPA 
promised to help reduce burdens by developing a guidance 
document. Unfortunately, EPA did not finalize the guidance 
document until the end of January 2002, after the entire first 
reporting year had passed.
    Last June, your colleague, the Honorable Mike Pence, 
chaired a hearing examining the burden this regulation placed 
upon small businesses. Following the hearing, Chairman Pence 
asked EPA Assistant Administrator Kim Nelson what steps EPA 
would take to reduce reporting burdens prior to the next 
reporting deadline. The Assistant Administrator wrote back 
saying, ``EPA will continue to provide compliance assistance on 
the lead rule targeted to small business, such as developing a 
Small Business TRI Lead Rule Hotline, sponsoring more workshops 
specifically for the lead rule, etc....EPA is committed to 
working with small business sectors to try to streamline the 
reporting.'' This is similar to the promises she made earlier 
today.
    I am saddened to report the July 2003 reporting deadline 
has come and gone without EPA having established the hotline, 
conducted additional training, or streamlining reporting in any 
way whatsoever.
    In January 2003, the rising burden of TRI on all 
businesses--and I have a graph up. I guess the audience cannot 
see it. I am sorry--prompted OMB to approve EPA's TRI forms 
with a shorter-than-usual clearance in order to provide EPA an 
opportunity to examine in more detail the TRI burden estimates 
and opportunities for reducing the burden. Despite OMB's 
encouragement, EPA has failed to take any actions that would 
significantly reduce reporting burdens.
    Our members take their responsibility to environmental 
stewardship seriously. As business owners, they and their 
families live, work, and play in the communities where their 
businesses operate. The TRI reporting requirements for lead 
burden America's businesses as they struggle to continue 
providing jobs in their communities.
    In conclusion, I ask you to consider whether it is 
reasonable to require thousands of businesses to incur 
substantial regulatory burden imposed by TRI in order to report 
insignificant or nonexistent releases. EPA should immediately 
undertake serious and expeditious efforts to streamline TRI 
reporting and refocus the program on significant environmental 
releases.
    Thank you again for the opportunity to express our 
concerns, and I welcome any questions.
    [The prepared statement of Ms. Abrams follows:]

      Statement of Fern Abrams, Director of Environmental Policy, 
         IPC--The Association Connecting Electronics Industries

    Good morning Madame Chairman, Ranking Member Kind and members of 
the Committee. My name is Fern Abrams and I am the Director of 
Environmental Policy for IPC, the trade association for the electronic 
interconnection industry. IPC's 2,200 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 these are large, name brand, international companies, 
sixty percent of IPC members are small businesses. On behalf of IPC and 
our member companies, I'd like to thank you and your staff for 
organizing this hearing.
    IPC members support cost-effective environmental regulations which 
are based upon sound scientific and economic analysis. Environmental 
regulations that are not based on such analysis often create 
unnecessary burdens while failing to achieve their goal of 
environmental protection. My testimony today will focus on one such 
rule, the Environmental Protection Agency's (EPA's) lowered reporting 
threshold for lead under the Toxic Release Inventory (TRI) program.
    EPA's regulation lowering the TRI reporting threshold for lead and 
lead compounds from 25,000 lbs to 100 lbs. took effect on April 17, 
2001, and included an unprecedented retroactive application of the 
reporting requirements to January 1, 2001. Equally unprecedented was 
EPA's decision to put the proverbial cart before the horse by basing 
the regulation on the questionable application of persistent, bio-
accumulative and toxic (``PBT'') criteria which were developed for the 
evaluation of synthetic organic compounds, while promising, in the 
final regulation, to conduct an ex-post facto Science Advisory Board 
review of critical assumptions on which EPA's rule was based. 
1
---------------------------------------------------------------------------
    \1\ 66 Fed. Reg. 4500, 4518 (Jan. 17. 2001)(``external peer review 
[will address] 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).
---------------------------------------------------------------------------
    In July 2000, the House Science Committee Chairman, Subcommittee 
Chairmen and Ranking Members sent a letter to EPA stating 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 SAB [Science Advisory 
Board] or other independent scientific peer review.''
    Two-and-a half years later, a panel of independent experts 
appointed by EPA has just concluded that the principal theoretical 
features of the model used by EPA in evaluating the bio-accumulative 
portion of the PBT criteria that make it applicable to the neutral 
organic substances also ``make it inapplicable to inorganic metal 
substances.'' 2
---------------------------------------------------------------------------
    \2\ Issue Paper on the Bioavailability and Bioaccumulation of 
Metals, Draft, August 2003, p. 32.
---------------------------------------------------------------------------
    IPC members, along with many other industries affected by the rule, 
have repeatedly voiced our concerns that the burden of this rule upon 
business, especially small businesses, has been significantly 
underestimated by EPA. During the development of the rule, EPA chose 
not to convene a Small Business Advocacy Review Panel as required under 
the Small Business Regulatory Enforcement and Fairness Act (SBREFA), 
deciding instead to certify the proposed and final rules as having no 
significant economic impacts on a substantial number of small entities. 
Yet, EPA admitted that its assessment was inadequate, stating that 
there were other industries ``that may be affected by the rule, but for 
which existing data are inadequate to make a quantitative estimate of 
additional reporting,'' and thus excusing their omission from the cost 
assessment. 3 On April 24, 2001, the Senate Committee on 
Small Business held a hearing on the effectiveness of SBREFA, with the 
GAO testifying that EPA's assertion that the rule would not have a 
``significant impact'' on small entities ignored more than 30 industry 
groups' concerns about the rule. Early outreach to small businesses 
could have helped EPA determine the number of small companies that 
would be significantly impacted by the rule.
---------------------------------------------------------------------------
    \3\ Lead and Lead Compounds; Lowering of Reporting Thresholds; 
Community Right-to-Know Toxic Chemical Release Reporting, 66 FR 4534 
January 17, 2001.
---------------------------------------------------------------------------
    Compliance with the lowered reporting thresholds has imposed a 
large and significant burden on affected businesses, including IPC 
members. For a small business, the job of interpreting and complying 
with the agency's instructions and guidance for the TRI is a 
substantial source of burden. The reporting forms, instructions, and 
guidance for complying with the reporting requirements for lead and 
lead compounds together total 746 pages, not including twelve industry 
specific guides, which, after two years, still have not been updated to 
include the lowered reporting thresholds. According to EPA's own 
estimates, the cost of compliance for new reporters in the electronics 
industry was $7,400 per facility in the first year alone. 4 
We believe this underestimates the actual costs, but in any event it is 
a significant sum of money when you consider those costs must come 
entirely from profits in an industry with ever decreasing customer 
prices and in many cases paper-thin margins.
---------------------------------------------------------------------------
    \4\ Ibid.
---------------------------------------------------------------------------
    In the supporting documentation for the TRI reporting forms, EPA 
states that, ``According to many, the TRI program is one of the most 
effective environmental programs ever legislated by Congress and 
administered by EPA. The information collected under Emergency Planning 
and Community Right-To-Know Act (EPCRA) Section 313, and subsequently 
distributed through EPA outreach and awareness programs, is provided at 
relatively low cost compared to the value it represents to the general 
public.'' 5
---------------------------------------------------------------------------
    \5\ Toxic Chemical Release Inventory, Toxic Chemical Release 
Reporting, Information Collection Request Supporting Statement, OMB 
Control Number 2070-0093 EPA ICR#1363.13 June 2003, pg 6.
---------------------------------------------------------------------------
    Examination of the data collected under the lowered reporting 
threshold for lead will cause even the casual observer to question this 
statement. The lowered reporting threshold for lead significantly 
increased the reporting burden on industry, but has resulted in little 
data. In 2001, the most recent year for which reporting data is 
available and the first reporting year under the lowered reporting 
threshold for lead, 8,561 Form Rs were filed for lead and lead 
compounds. Forty percent of new reporters under the TRI lead rule 
reported zero releases, while the median reported release of lead to 
the environment is one pound. To put this in context, the average 
automobile battery contains seven pounds of lead.
    In the electronics and electrical equipment manufacturing sector 
(SIC 36), 1,252 Form Rs were filed for lead and lead compounds. The 
total releases reported by this sector amount to less than 0.1% of all 
lead releases. Fifty-four percent of all electronics sector Form Rs for 
lead and lead compounds reported zero pounds of lead released to the 
environment. Surely, this cannot be EPA's idea of a cost-effective 
regulation.
    In the two years since the regulation was finalized, EPA has 
repeatedly failed to reduce the burden of compliance through 
simplification of reporting, or at a minimum the provision of effective 
compliance assistance. During the time the rule was under consideration 
and after its adoption, many concerns were raised about the enormous 
burdens it would impose on small businesses throughout the country. We 
were pleased when in April, 2001 President Bush recognized this 
problem, and directed EPA to help small businesses. 6 In a 
May 2001 letter to 73 concerned trade associations, the EPA's Office of 
Environmental Information (OEI) reiterated this point by promising to 
help reduce the burdens imposed on small businesses by developing a 
final guidance document by October 2001. 7 Unfortunately, 
EPA did not finalize the promised guidance document until the end of 
January 2002, after the entire first reporting year had passed.
---------------------------------------------------------------------------
    \6\ Statement by the President, White House Office of the Press 
Secretary, April 17, 2001.
    \7\ Letter from Margaret N. Schneider, Acting Assistant 
Administrator, Office of Environmental Information, to Jane C. Luxton, 
King & Spalding, May 25, 2001. Ms. Schneider's letter responded to a 
letter sent to EPA by seventy-three associations, including many small 
business groups, that had written to the Agency expressing concerns 
about the rule.
---------------------------------------------------------------------------
    Last summer, your colleague, the Honorable Mike Pence, chaired a 
hearing which examined the burden this regulation placed upon small 
businesses by a rulemaking process that had not included adequate 
review. Following his June 2002 hearing, Chairman Pence asked EPA 
Administrator Kim Nelson what steps EPA would take to ensure reduced 
burden and reduced compliance costs for the TRI July 2003 reporting 
deadline. Assistant Administrator Nelson wrote in response that, ``EPA 
will continue to provide compliance assistance on the lead rule 
targeted to small business, such as developing a Small Business TRI 
Lead Rule Hotline, sponsoring more workshops specifically for the lead 
rule, etc.'' Assistant Administrator Nelson went on to promise, ``EPA 
is committed to working with small business sectors to try to 
streamline their reporting...'' 8 I'm saddened to report 
that the July 2003 deadline has come and gone without EPA having 
established the promised hotline, conducted additional training, or 
streamlined reporting in any way.
---------------------------------------------------------------------------
    \8\ Letter from EPA Assistant Administrator Kim Nelson to the 
Honorable Mike Pence, July 24, 2002.
---------------------------------------------------------------------------
    In January 2003, the Office of Management and Budget (OMB), noting 
significant industry concern with the rising TRI burden of compliance, 
approved EPA's TRI Information Collection Request (ICR), ``with a 
shorter than usual clearance in order to provide the EPA an opportunity 
to examine in more detail the TRI burden estimates and opportunities 
for reducing burden and enhancing the practical utility of the data.'' 
9 Despite OMB's encouragement, EPA has failed to take any 
actions that would significantly reduce reporting burdens. Instead, 
EPA's new ICR relies on inadequate data and flawed assumptions in order 
to derive imaginary reduced burden estimates.
---------------------------------------------------------------------------
    \9\ 68 FR 39074 July 1, 2003
---------------------------------------------------------------------------
    Our members take their responsibility to environmental stewardship 
very seriously. As small business owners they and their families live, 
work and play in the communities where their businesses operate. The 
TRI reporting requirements for lead are just one of many burdensome, 
unjustified regulations that plague America's businesses daily as they 
struggle to continue providing jobs in their communities.
    In conclusion, I ask you to consider whether it is reasonable to 
require thousands of small businesses to continue to incur the 
substantial regulatory burden imposed by TRI in order to report 
insignificant or nonexistent releases. We believe EPA should 
immediately undertake serious efforts to streamline TRI reporting and 
re-focus the program on significant environmental releases.
    Thank you again, Madame Chairman for giving IPC the opportunity to 
express our concerns and I welcome any questions.
                                 ______
                                 
    Mr. Gibbons. Thank you very much, Ms. Abrams, for your very 
helpful testimony.
    We will turn now to Ms. Shultz, or should I say ``Dr. 
Shultz''?

        STATEMENT OF LEXI SHULTZ, MINERAL POLICY CENTER

    Ms. Shultz. I am an attorney and I have a chemistry 
undergraduate, but I am not a doctor.
    My name is Lexi Shultz----
    Mr. Gibbons. Well, welcome to the committee, regardless of 
the fact you are an attorney.
    [Laughter.]
    Ms. Shultz. And I appreciate the chance to testify here 
with a view that is obviously somewhat different than what I 
think you would like to hear. But my name is Lexi Shultz. I am 
the legislative director for the Mineral Policy Center, which 
is a nonprofit, nonpartisan group that works to protect 
communities and the environment from some of the impacts of 
mining pollution.
    My testimony today focuses on the fact that the public has 
a right to full, unfiltered information about the billions of 
pounds of toxic chemicals that the mining operations in the 
U.S. release into the environment every year. This information 
will ensure that the public, and not just the mining industry, 
gets to determine whether or not sites pose a risk and whether 
or not they should be concerned about their communities and 
their health.
    As Governor Christie Whitman stated on May 23, 2002, ``The 
Toxics Release Inventory is a powerful tool to help citizens 
assess local environmental conditions and to help them make 
decisions about protecting their environment.''
    The mining industry has only reported toxic releases for 4 
years, and for each of those years, it has topped the list as 
the Nation's largest polluter. And since that time, the mining 
industry in various forums has been fighting to deny the public 
access to the information. We have already heard about the two 
lawsuits, and, in fact, in 1998, the National Mining 
Association did sue to exclude mining from TRI reporting, 
although I am certainly glad to hear Mr. O'Connor express 
support for the program today.
    There are many excuses and reasons that the mining industry 
uses to justify its attempts to exclude this information from 
the public. For one, we have heard that they say mining 
operations do not harm the environment and that toxic waste is 
safely managed and contained onsite. But modern mining 
operations are far from benign. According to the EPA, mine 
waste has contaminated more than 40 percent of the headwaters 
of Western watersheds. Not all of that is historic. According 
to the EPA's online Enforcement and Compliance data base, 26 
major mine facilities in Regions 8, 9, and 10 violated the 
Clean Water Act just in the last 2 years.
    Kennecott's Bingham Canyon Mine in Utah is just one 
example. This mine has polluted 72 square miles of groundwater 
and violated the Clean Water Act six times in the last 2 years, 
including once when they released toxic mercury at levels 900 
percent over their permitted levels.
    Another thing we have heard is that the TRI does not 
determine risk and somehow because of that the information is 
not useful to the public. It is true that the TRI itself does 
not determine whether a site is dangerous. But it provides 
information so that communities can make that determination. 
And this type of information, had the TRI existed, could have 
proved very useful to the citizens of Libby, Montana, where 192 
people died of asbestosis because of airborne asbestos from a 
W.R. Grace vermiculite mine. W.R. Grace withheld information 
from the public, essentially substituting its judgment for 
those of the townspeople. And that is what the TRI is trying to 
prevent now.
    Another claim we have heard is that mining waste is just 
rock and that because the chemicals are naturally occurring, 
they should not be reported to the TRI. But the only material 
that is reported are the toxics in rock, and when the toxic 
chemicals are released into the environment, that does not 
happen naturally. Mining operations add chemicals directly, 
such as cyanide and sulfuric acid. But the chemicals that are 
found naturally in rock would not necessarily have been 
released into the environment were it not for the actions of 
the industry. We are talking about the grinding and crushing of 
huge amounts of rock and the consequent formation of acid mine 
drainage, and both actions can release toxic chemicals into 
waterways.
    At one mine in New Mexico run by Molycorp, widespread acid 
mine drainage and heavy metal contamination were leached out of 
a waste rock pile, the specific type of waste that we have 
heard Mr. O'Connor and others talk about, and that wiped out 8 
miles of the Red River, which was once a blue-ribbon trout 
fishery. This is exactly the sort of pollution that the public 
has a need and a right to know about.
    Unfortunately, it is going to become very important to 
defend the public's right to know because of the court cases 
that you have heard about. After the NMA v. EPA case, the EPA 
made it clear that reporting requirements were not to change 
until they could instigate a rulemaking. But in a July 2001 
letter to the EPA, the NMA stated that it disagreed and 
intended to interpret the court decision on its own. That may, 
in fact, be what some mining operations have already been 
doing, is withholding information on their own. It is 
impossible to know without the full information.
    The Barrick Gold Strike case is even more disturbing. The 
D.C. District Court there held that mining waste and waste rock 
would be exempt from public review under the EPA's de minimis 
rule, despite the fact that the amounts of chemicals in waste 
rock could potentially add up to a billion pounds. That is a 
guess. We do not have the information. I wish we did. But it is 
only a small percentage because the amount of waste rock itself 
is so huge. Such a large amount of pollution was never meant to 
be exempt from reporting under the de minimis rule.
    In conclusion, I just want to say that the EPA has always 
been a steadfast defender of the public's right to know. They 
should continue to do so. They should make it clear that the 
Agency's de minimis rule cannot legally apply to chemicals that 
add up to massive quantities and that all mining activities 
should be regulated under the TRI; and that when the TRI is 
allowed to work, the public gains an invaluable public 
information tool. The public does not need the mining industry 
to decide what is best for it.
    Thank you very much.
    [The prepared statement of Ms. Shultz follows:]

            Statement of Lexi Shultz, Legislative Director, 
                         Mineral Policy Center

    My name is Lexi Shultz, and I'm the Legislative Director for the 
Mineral Policy Center, a non-profit, non-partisan group created to 
protect communities and the environment from the impacts of mining 
pollution.
The Toxics Release Program Has Been Highly Popular and Useful for 
        Communities
    I want to thank the Subcommittee for the opportunity to testify on 
the critical importance of full mining industry reporting to the Toxics 
Release Inventory program, which implements the Public's Right to Know.
    What I will talk about today is the fact that hardrock mining, the 
nation's top toxic polluter over the last four years, releases into 
communities and the environment potentially dangerous chemicals like 
arsenic, mercury and lead, and the public has a right to know about it. 
As such, the mining industry's efforts to hide this pollution from the 
public should be halted.
    The Toxics Release Inventory Program, or TRI, was established in 
1986 by the Emergency Planning and Community Right-to-Know Act (EPCRA) 
and is administered by the Environmental Protection Agency (EPA). TRI 
requires industrial facilities to annually disclose to the public the 
volume and type of pollutants they have discharged into the air, water, 
or land or have transferred to other sites for incineration, recycling 
or disposal.
    The TRI gives citizens information that they can use to protect 
their communities and ensure that mining and other companies behave in 
an environmentally responsible manner. As you may be aware, the right 
for the public to know about toxic chemical releases enjoys widespread 
support among the public, its elected representatives, and even in the 
courts. As Governor Christie Todd Whitman stated on May 23, 2002, ``The 
Toxics Release Inventory is a powerful tool to help citizens assess 
local environmental conditions and to help them make decisions about 
protecting their environment.'' 1
---------------------------------------------------------------------------
    \1\ http://www.epa.gov/epahome/headline--052302.htm
---------------------------------------------------------------------------
    TRI is a highly useful public information tool. Companies face no 
penalty for their reports, and are not required to take any actions to 
reduce their pollution. Nevertheless, some industries have voluntarily 
chosen to reduce their pollution because of the advantages of the 
resulting public good will. Moreover, the information provided to 
communities has helped them ascertain what steps to take to protect 
themselves by, for example, pushing to have environmental laws enforced 
against non-complying operations.
Mining--The Nation's Top Toxic Polluter for Four Years in a Row
    The hardrock mining industry first started reporting its toxic 
releases to the EPA in 1998, and the information was first made 
available to the public in 2000. Since then, the TRI has shown that the 
hardrock mining industry is the nation's top toxic polluter. Last year 
alone, the hardrock mining operations reported releases of 2.8 billion 
pounds of waste overall for 2001--nearly half (46%) of all toxics 
released by all industries combined. 2 This amount included 
more than 335 million pounds of lead, 4 million pounds of mercury and 
365 million pounds of arsenic. 3 The top ten largest 
polluters in the U.S. are mine sites, according to the TRI.
---------------------------------------------------------------------------
    \2\ http://www.epa.gov/triexplorer
    \3\ http://www.epa.gov/triexplorer
---------------------------------------------------------------------------
    Of course, 1998 was not the first year that mining operations 
started releasing toxic chemicals into the environment. In fact, it's 
quite possible that the hardrock industry was the nation's top toxic 
polluter for years or decades before that. But before that time 
citizens didn't have access to the information they could use to 
protect themselves from mining toxins in their communities.
    Unfortunately, ever since they were first required to report to the 
TRI, the hardrock mining industry has been fighting to put the public 
back in the dark about mining toxic releases. Back in 1998, before any 
mining TRI report came out, the National Mining Association sued the 
EPA in order to block any mining pollution data from being made public. 
4 The NMA challenged everything it could think to challenge, 
including the notion that the public right-to-know laws should apply to 
mining operations at all. The NMA also petitioned EPA in 1998 to exempt 
the bulk of mining waste from the TRI program by classifying it as 
``overburden.'' In 1999, Barrick Gold, one of the biggest mining 
companies, joined the NMA in suing the EPA to get out of reporting all 
of its pollution.
---------------------------------------------------------------------------
    \4\ http://www.epa.gov/tri/lawsandregs/nma--lawsuit--fact--
sheet.htm
---------------------------------------------------------------------------
    I want to emphasize that what we are talking about here is simply 
information--information that the public has a legal right to--but 
nothing more and nothing less than information. While my organization 
aims to help communities deal with the environmental and other impacts 
of hardrock mining pollution, and to work to reduce that pollution 
wherever possible, that is not what this hearing is about, or what the 
Toxics Release Inventory is about. Instead, the issue here is that 
mining operations release billions of pounds of toxic chemicals into 
the environment every year, the public has a right to know about it 
under the law, but the mining industry wants to hide it. What are the 
National Mining Association, Barrick Gold, and other like-minded 
operations so afraid of? Apparently, according to their testimony, they 
are extremely proud of their record. They have an opportunity to garner 
good public will by being forthright and forthcoming about their toxic 
release information. Instead, they are fighting it all the way.
Mining Pollution Harms the Environment
    Because precious metals exist in microscopic quantities in ore, 
most modern mines dig enormous open pits to extract huge volumes of 
rock and ore, and then use toxic chemicals like cyanide to leach out 
the desired metals. The crushed, ground and processed rock is then 
dumped into enormous piles, called tailings piles, which are usually 
stored above ground in containment areas or ponds. Waste rock, 
unprocessed rocks that do not contain a high enough grade of ore, are 
often crushed and piled hundreds of feet high, exposing the heavy 
metals contained within to the elements. These waste rock piles and 
tailings piles contain heavy metals such as arsenic, cadmium, lead and 
mercury. The environmental consequences of these enormous operations 
are often devastated landscapes, damaged wildlife habitat, and 
significant amounts of water pollution.
Water Pollution
    Mine waste has contaminated more than 40 percent of the headwaters 
of western watersheds, according to the Environmental Protection 
Agency. 5 While some of that contamination is from historic 
mining, modern mining operations continue to cause water pollution and 
often violate environmental laws such as the Clean Water Act. The EPA's 
online Enforcement and Compliance database shows that, in Regions 8, 9, 
and 10, twenty six major mine facilities violated the Clean Water Act 
in the past two years. 6
---------------------------------------------------------------------------
    \5\ Liquid Assets 2000: America's Water Resources at a Turning 
Point, May 2000, Environmental Protection Agency
    \6\ The Environmental Protection Agency's Enforcement & Compliance 
History Online (ECHO) database, http://www.epa.gov/echo/
---------------------------------------------------------------------------
    Kennecott's Bingham Canyon Mine in Utah is a good example. The mine 
has polluted 72 square miles of groundwater in the Salt Lake City Area. 
7 In the past two years alone, Bingham Canyon Mine has 
racked up 6 Clean Water Act violations at its Utah site. In one case, 
the mine released highly toxic mercury at levels 900 percent over 
permitted limits. 8 The mine also released 695 million 
pounds of toxic waste in 2001--including 21 million pounds of arsenic 
and 91 million pounds of lead--making it the largest toxic polluter in 
the U.S., according to the EPA. 9
---------------------------------------------------------------------------
    \7\ http://www.epa.gov/region8/superfund/sites/ut/kennes.html
    \8\ The Environmental Protection Agency's Enforcement & Compliance 
History Online (ECHO) database, http://www.epa.gov/echo/
    \9\ http://www.epa.gov/triexplorer
---------------------------------------------------------------------------
    Phelps Dodge Corporation's dormant Christmas copper mine near 
Winkelman, Arizona, is another good example. Phelps Dodge settled with 
the EPA for $105,000 in fines this year, after discharging pollutants 
at levels harmful to aquatic life into a tributary of the Gila River. 
Phelps Dodge had also failed to report its discharges of copper and 
sulfides, in violation of their Clean Water Act discharge permit. 
10
---------------------------------------------------------------------------
    \10\ http://www.epa.gov/fedrgstr/EPA-WATER/2002/December/Day-19/
w31980.htm, http://www.minesandcommunities.org/Action/press111.htm
---------------------------------------------------------------------------
    The Cripple Creek mine in Colorado also exceeded pollution limits 
22 times over a three year period from 1996 to 1999, releasing zinc, 
copper and cyanide into streams that feed the Arkansas River. 
11 In 2002, Cripple Creek and Victor Mining Company settled 
with the Environmental Protection Agency, after attempting to claim 
that much of the pollution coming from their mine site was not the 
company's responsibility.
---------------------------------------------------------------------------
    \11\ Hartman, Todd. ``Mine To Pay EPA $125,000.'' Rocky Mountain 
News 13 September, 2000.
---------------------------------------------------------------------------
Acid Mine Drainage
    Another major water pollution problem from hardrock mines is 
created by acid mine drainage. Acid mine drainage develops when mining 
operations expose sulfur-laden rock to air and water, leading to the 
formation of sulfuric aced. This acid is in itself harmful to water 
bodies and aquatic life, but it also dissolves and mobilizes many kinds 
of toxic chemicals that are reportable under the TRI, such as iron, 
copper, aluminum, cadmium, arsenic, lead and mercury. Even in trace 
amounts, these substances can be toxic to humans and wildlife. Carried 
in water, the metals can travel long distances, contaminating streams 
and groundwater. The streams most seriously affected by acid mine 
drainage and heavy metal contamination are biologically ``dead.''
    The Gilt Edge Mine, located in the Black Hills of South Dakota, is 
an example of a mine with toxic pollution problems created by acid mine 
drainage. Acid drainage from the Ruby Gulch waste rock pile has leached 
pollutants like arsenic, cadmium, cobalt, copper, lead and zinc, 
leading to extensive groundwater contamination at the site. 
12 The mine was placed on the Superfund National Priorities 
List on December 1, 2000, after the bankruptcy of the Dakota Mining 
Company.
---------------------------------------------------------------------------
    \12\ Source: Summary of the Large Scale Gold Mining Industry in the 
Black Hills. Prepared by the South Dakota Department of Natural 
Resources and the Environment, 2001.
---------------------------------------------------------------------------
    In September of 2000, the bones and bodies of more than 100 birds 
were found alongside highly acidic tailings ponds during a routine 
inspection of the Phelps Dodge Tyrone mine, one of New Mexico's largest 
copper mines. The now-inactive ponds of milled waste rock or tailings 
tested at least as acidic as vinegar, which has a pH of three to four. 
State and federal officials said the bird die-off appeared to be the 
largest ever associated with mine-water pollution in the state. 
13
---------------------------------------------------------------------------
    \13\ September 20, 2000, Wednesday Copyright 2000 Albuquerque 
Journal, Santa Fe, New Mexico
---------------------------------------------------------------------------
Reclamation Failures
    The mining industry also touts its reclamation record--its ability 
to clean up closed mines, but the evidence doesn't support this claim. 
Currently, 87 abandoned hardrock mining sites are so polluted that they 
are included on the Superfund National Priorities List. Moreover, many 
non-Superfund mine sites remain unreclaimed even years after the mine 
has shut down. These sites are often left for taxpayers to clean up 
when mining companies wind up without the resources for full 
reclamation. According to the Center for Science in Public 
Participation, potential taxpayer liability at currently operating 
mines could be more than $12 billion. 14 Cleanup costs for 
abandoned mines could be $32 billion to $72 billion more. 15
---------------------------------------------------------------------------
    \14\ Kuipers, J., Putting a Price on Pollution, Center for Science 
in Public Participation, March 2003.
    \15\ Mineral Policy Center, Burden of Gilt, June 1993
---------------------------------------------------------------------------
    One example, although there are many, is the Zortman-Landusky Gold 
mine, owned and operated by Pegasus Gold Corp. and located in Little 
Rocky Mountains of north-central Montana. Pegasus Gold went bankrupt in 
1998, leaving state taxpayers with millions of dollars in cleanup 
expenses. In 1982, irresponsible management of cyanide solution 
resulted in 6 separate spills and leaks, which contaminated groundwater 
and poisoned local drinking water sources. Today, half of all streams 
in the area are polluted with acids and heavy metals from the mine. 
16
---------------------------------------------------------------------------
    \16\ Final Supplemental Environmental Impact Statement for 
Reclamation of the Zortman and Landusky Mines, Phillips County, 
Montana. Prepared by Bureau of Land Management and Montana Department 
of Environmental Quality, December 2001.
---------------------------------------------------------------------------
Toxic Chemicals Released by Mining are Known to Be Harmful to Public 
        Health
    Toxic mine pollution contains chemicals that are known to have 
public health threat. Among the toxic chemicals reported by the mining 
industry to the TRI are cyanide, arsenic, mercury, lead and selenium. 
Americans have the right to know about releases of these and other 
chemicals so that they can determine whether their health or their 
communities may be at risk. Without such information, it would be 
impossible to determine such risk. Here are some of the known 
characteristics and potential health impacts of these chemicals:
    Cyanide solutions readily bond with gold, silver and other metals, 
which is why the mining industry uses it to leach ore from large 
quantities of rock. Cyanide is also highly toxic. Cyanide poisoning can 
occur through inhalation, ingestion and skin or eye contact. One 
teaspoon of a 2% solution can kill a person. 17
---------------------------------------------------------------------------
    \17\ Medical Toxicology, Ellenhorn & Barceloux, Elsevier Science 
Publishing Co., New York City, N.Y., 1988
---------------------------------------------------------------------------
    Over the years, cyanide spills have polluted rivers and streams 
throughout the west, damaging aquatic life and threatening public 
health. The defunct Grouse Creek mine in Idaho is a classic example--
the Grouse Creek mine, located adjacent to the largest wilderness 
complex in the lower 48 states, was heralded as a ``state of the art'' 
mine when it began operations in 1994. Less than a year later, cyanide 
was detected in groundwater and Jordan Creek--a stream identified by 
the federal government as critical salmon habitat. By the time, Grouse 
Creek temporarily suspended operations in 1997, Hecla had 258 
violations of their discharge permit. As a result of on-going 
violations, the Forest Service posted signs along Jordan Creek which 
warned, ``Caution, do not drink this water.'' 18 In July 
1999, fearing a catastrophic release of cyanide and heavy metals from 
the Grouse Creek tailings impoundment, the Forest Service initiated a 
``time critical removal action'' under CERCLA. 19 Water 
quality problems continue at the mine today, as the federal government 
struggles with reclamation.
---------------------------------------------------------------------------
    \18\ Press Release, USDA Forest Service, Salmon-Challis Forest. 
July 6, 2000
    \19\ Grouse Creek Removal Action Memorandum, Jack Blackwell, 
Regional Forester, USDA Forest Service Intermountain Region. July 26, 
1999., Engineering Evaluation/Cost Analysis for Non Time Critical 
Removal Action at the Grouse Creek Mine, Custer County, Prepared by 
Hecla Mining Company, July 17, 2002., Hardrock and Phosphate Mining In 
Idaho, a report by the Idaho Conservation League and Boulder White 
Clouds Council, March 2002
---------------------------------------------------------------------------
    Arsenic is a powerful poison that at high oral dosages can cause 
severe illness and death. At lower doses, arsenic can cause pain, 
bleeding, nausea, vomiting, and can also damage the nerves, leading to 
headaches, lethargy, seizures and coma. 20 Long-time 
exposure to arsenic can cause abnormal heart rhythm, blood vessel 
damage, and liver damage. Arsenic is also a known carcinogen, according 
to the Department of Health and Human Services. According to a February 
15, 2001, Associated Press story, border patrol agents became sick from 
hazardous materials including arsenic and lead after patrolling near a 
defunct copper smelter in Douglas, Arizona. The agents complained of 
nausea, headaches and difficulty breathing.
---------------------------------------------------------------------------
    \20\ http://www.atsdr.cdc.gov/tfacts2.html
---------------------------------------------------------------------------
    Mercury is a potent neurotoxin. Children and infants exposed to 
mercury often experience delays in developing motor skills like walking 
and talking. The EPA recently expressed concern about an increase in 
women with elevated blood mercury levels, as this dangerous toxin can 
transfer through a placenta to a developing fetus, or to a newborn 
through breast feeding--resulting in exposure at critical developmental 
ages. 21
---------------------------------------------------------------------------
    \21\ http://www.epa.gov/waterscience/fishadvice/advice.html
---------------------------------------------------------------------------
    Lead can affect almost every organ and system in the body. 
22 Breathing or swallowing lead can damage the nervous 
system, kidneys and especially the immune system. Exposure to lead can 
permanently damage a child's brain and can impede growth and cause 
learning difficulties, and hearing loss. For mothers, high levels of 
lead exposure can cause miscarriages and premature births. Lead can 
also cause headaches, irritability, disturbed sleep and poor memory and 
concentrations. A recent National Institute of Health study, published 
in April in the New England Journal of Medicine, suggests that there is 
no acceptable level of exposure to lead. According to the study, any 
amount of lead can cause intellectual impairment in children, and 
greater damage seems to occur at levels of lead that have previously 
been regarded as safe. Furthermore, the effects are permanent. Attempts 
to remove lead from children can reduce blood levels, but do nothing to 
restore a child's lost intelligence.
---------------------------------------------------------------------------
    \22\ http://www.atsdr.cdc.gov/tfacts13.html
---------------------------------------------------------------------------
    Mining companies' lead pollution has contaminated water supplies 
and homes throughout the Coeur d'Alene-Spokane river basin in Idaho and 
Washington. Virtually all of the 179 children living within a mile of 
the abandoned Bunker Hill silver mine (a Superfund site) were found to 
have brain-impairing levels of lead in their blood. 23 And 
according to the U.S. Geological Survey, a half-million pounds of lead-
contaminated mine sediment landed in Lake Coeur d'Alene every year from 
1999 to 2001, and another two dozen tons of that sediment traveled down 
the Spokane River. Local health officials have posted signs at beaches 
along the lake and river and have warned people that rainbow trout and 
mountain whitefish contain dangerous levels of lead.
---------------------------------------------------------------------------
    \23\ http://www.atsdr.cdc.gov/testimony/testimony-1995-05-12.html
---------------------------------------------------------------------------
    Selenium is a metal commonly found combined with silver, copper and 
other metals. In June 2003, at an old hardrock mine in Idaho, more than 
300 sheep died from selenium poisoning after grazing near the mine for 
a week. 24 In humans, overexposure to selenium can cause 
hair loss, liver damage, dizziness, fatigue, fluid in the lungs and 
severe bronchitis, along with painful skin rashes. 25
---------------------------------------------------------------------------
    \24\ http://www.agweekly.com/commodities/sheephog/
index.asp?StoryID=183
    \25\ http://www.atsdr.cdc.gov/tfacts92.html
---------------------------------------------------------------------------
    These are by no means the only toxic chemicals released by the 
mining industry--a more complete list of toxic chemicals reported by 
the mining industry on the TRI, along with their characteristics and 
potential health impacts is attached.
Hardrock Mining Pollution: Nothing Natural About It
    One myth the National Mining Association and individual mining 
companies like to use is that the toxic chemicals they release into the 
environment are ``naturally occurring'' and thus should not be reported 
on the TRI. This argument is erroneous.
    Some chemicals are added to the environment by the mining industry 
directly--such as cyanide and sulfuric acid. Other chemicals may be 
found naturally in rock, but would never have been exposed to the 
environment if not for the actions of the mining industry. After all, 
there is nothing natural about an open-pit mine. Nature does not dig 
open pits thousands of feet deep and wide, grind and dump huge piles of 
rock, crush piles of ore and pour chemicals over it in order to extract 
metals. The rock, and the toxic chemicals therein, undergo both 
mechanical and chemical changes from the activities that occur during 
mining and the exposure of the rock to air and water.
    In particular, acid mine drainage forms because mining operations 
expose sulfur-laden rock to the air and water. In turn, this acid can 
leach heavy metals and other toxins into streams, rivers, lakes and 
drinking water. For example, at least 8 miles of the Red River in 
northern New Mexico are biologically dead because of acid mine drainage 
at the Molycorp molybdenum mine. Over the last 30 years or so, 
widespread acid mine drainage and heavy metal contamination has leached 
out of its waste rock piles into the Red River, which was once a blue-
ribbon trout fishery. 26 Since this large-scale operation 
began, the nearby town of Questa has seen the River turn milky blue 
from aluminum coating the riverbed. Copper, zinc, lead, cadmium and 
silver have been detected at chronic and acute levels along the twenty-
mile stretch of the River below the mine. In addition to water 
contamination, dust containing lead and other pollutants from enormous 
molybdenum tailings storage ponds blows over the town of Questa. 
Because of contaminated dust blowing from the tailings piles onto 
students at a local high school, Molycorp eventually paid to have the 
high school relocated. 27
---------------------------------------------------------------------------
    \26\ http://www.nmenvirolaw.org/cases/molycorp.htm
    \27\ http://www.amigosbravos.org/molycorpwatch/background.html
---------------------------------------------------------------------------
    It is this sort of pollution that the NMA claims is ``naturally 
occurring'' and thus would be ``misleading'' for the public to have 
information about. This is exactly the sort of pollution that never 
would have occurred without the mine and that the public has a right 
and a need to know about. That is what makes the TRI such a valuable 
tool.
Communities Put the TRI Information to Good Use
    Throughout the country, communities learn from the information 
provided under the TRI and use it to improve their quality of life. In 
Alaska, for example, the TRI demonstrated how pollution from the Greens 
Creek mine is affecting the Admiralty Island National Monument. 
Kennecott mining company is proposing to expand its waste piles for 
this mine, and without the TRI, there would be no complete picture of 
how that could potentially further impact the National Monument. Local 
citizens are now seeking to enforce a bond for the mine that will be 
adequate to ensure full future cleanup.
    In Nevada, TRI data showed that Nevada's mines emitted 13,000 
pounds of mercury into the air in 1998, or 4% of the entire releases in 
the U.S. 28 Mercury is not a localized pollutant, but can 
travel and deposit into water far from its source. A local public 
interest group is now attempting to address this problem through the 
prevention of significant deterioration program under the Clean Air 
Act, which essentially seeks to keep air clean in rural areas of the 
country.
---------------------------------------------------------------------------
    \28\ http://www.epa.gov/triexplorer
---------------------------------------------------------------------------
The Mining Industry's Attempts to Block the Public's Right to Know
    Unless steps are taken to protect the Public's Right to Know, 
through the EPA's proposed rule-making or other measures, this 
invaluable data may be lost. The mining industry may yet be successful 
in its attempts to use the courts to hide its pollution from the 
public.
    In the National Mining Association 1998 case, NMA v. EPA (Civil No. 
97-N-2665; D. Colo.), the NMA challenged the TRI program in three ways. 
First, it said that the EPA had no authority to regulate mining 
operations under the Public Right to Know laws. The District Court of 
Colorado rejected this argument, holding that mining facilities are not 
exempt from the law. Second, the NMA argued that mining facilities 
shouldn't have to report toxic chemicals released into leach pads. 
Again, the District Court ruled against the NMA on this point, holding 
that mining operations cannot get out of reporting toxic releases to 
land. Finally, the NMA argued against reporting toxic materials 
resulting from the ``extraction or beneficiation'' of ores--taking ore 
out of the ground and getting the metal out of it, essentially--because 
such activities aren't ``processing'' as that's defined under the 
Public Right to Know laws.
    The Court initially accepted the NMA's third argument, but 
ultimately clarified that, while ``extraction and beneficiation'' may 
not be processing, that didn't necessarily mean that such activities 
weren't manufacturing or some other regulated activity under the Public 
Right to Know Laws. Based on that clarification, the EPA made it very 
clear to the NMA that there would be no changes in reporting 
requirements, at least until the agency could undertake a rulemaking to 
address the issue. But, in a July 2, 2001 letter to the EPA, the NMA 
stated that it intended to ignore the EPA's directives, and that it 
would undertake to withhold reporting information from the public 
according to its own interpretation of the Court's ruling.
    It is the public that will suffer because of the NMA's 
recalcitrance. The reported mining toxic releases from the 2001 TRI 
were 2.8 billion pounds--but the actual pollution may have been much 
higher. In 2000, mining toxic releases totaled more than 3 billion 
pounds, and mining practices changed little in 2001. 29 In 
light of the National Mining Association's quarrel with the EPA's 
directive not to change reporting practices after the NMA v. EPA case, 
it is very possible that mining operations have reduced the reporting 
of their toxic pollution, but not reduced the toxic pollution itself.
---------------------------------------------------------------------------
    \29\ http://www.epa.gov/triexplorer
---------------------------------------------------------------------------
    In the 1999 Barrick Gold case, Barrick Goldstrike Mines, Inc. v. 
Whitman (Civ. Action No. 99-958 (D.D.C.), Barrick raised several 
issues, again, each one designed to limit the amount of information the 
public can receive about toxic mining pollution. In April 2003, the 
D.C. District Court rejected Barrick's arguments that toxic chemicals 
that change into a slightly different form shouldn't be reported, and 
that toxic chemicals released as part of tailings shouldn't be 
reported.
    Disturbingly, however, the D.C. District Court agreed with Barrick 
on one issue--that an EPA rule--the so-called ``de minimis'' 
exemption--could apply to toxic chemicals dumped as part of waste rock. 
The EPA rule was written to forgive reporting for truly trivial amounts 
of toxic chemicals. But Barrick argued that the rule should apply to 
the immense amounts of toxic chemicals released as part of waste rock, 
simply because these poisons make up such a small percentage of the 
even more mammoth amounts of waste rock that is dumped. The mining 
industry in the U.S. releases more than 1 billion pounds of toxic 
chemicals as part of the hundreds of billions of pounds of waste rock 
it dumps every year. That is vastly more than a trivial amount of toxic 
pollution, and thus was not meant to be exempt from reporting under the 
EPA's ``de minimis'' rule. Unfortunately, the court looked at the 
language of the EPA ``de minimis'' rule rather than its intent, and 
exempted such pollution from being reported.
    The implication of the Barrick case is not totally known yet, but 
it could mean that 1 billion pounds of toxic chemicals released by the 
mining industry into communities and into the environment might be 
hidden from public view next year. As such, Barrick's legal efforts to 
hide its toxic pollution from the public may be very successful.
    In addition, the National Mining Association may attempt to use the 
Barrick decision to push the EPA to classify waste rock as 
``overburden,'' which is exempt from TRI reporting. In October 2002, 
EPA formally denied the NMA's previous ``overburden'' petition, in 
which the NMA had sought to expand the definition of ``overburden'' to 
include ``consolidated material'' such as waste rock. Because the EPA 
decided that ``overburden'' would be exempt from reporting, the NMA was 
seeking to exempt as much mining waste as possible from the TRI 
program. In denying the NMA's petition, the EPA specifically stated 
that waste rock would not be classified as ``overburden'' because there 
were greater than negligible amounts of toxic chemicals in waste rock. 
The EPA was correct--the potentially billion pounds of toxic chemicals 
in waste rock nationwide is far greater than negligible and should not 
be exempt from reporting.
    Nevertheless, the NMA may use the erroneous decision in the Barrick 
case to re-open this petition and thus further limit the public's 
access to information about toxic chemicals in mining waste. 
Specifically, classifying waste rock as overburden would eliminate 
public information about Persistent Bioaccumulative Toxins such as lead 
and mercury. Right now, despite the Barrick decision, mining operations 
must report the presence of such toxic chemicals even in waste rock, 
because such chemicals are exempt from the EPA's ``de minimis'' rule. 
But exempting waste rock as ``overburden'' could put that reporting in 
jeopardy.
    Hiding the toxic pollution from waste rock is not an academic 
matter. Every day, toxic chemicals leaking from waste rock pollute 
streams and groundwater on which families depend. For example, at the 
Kendall mine in the Moccasin Mountains of central Montana, waste rock 
piles are leaching acid and metals such as arsenic, lead, and chromium 
into ground water and surface water. Downstream ranching families have 
been forced to file suit against the mining company, Canyon Resources, 
for damages to their private property. 30 The Montana 
Department of Environmental Quality has determined that long-term water 
treatment will be needed. A report in November 2002 by Water and 
Environmental Technologies describes impacted groundwater as containing 
elevated concentrations of arsenic, barium, beryllium, cadmium, 
chromium, copper, iron, lead, nickel, selenium, silver, thallium, 
vanadium and zinc. 31
---------------------------------------------------------------------------
    \30\ Extent of Contamination Investigation Little Dog Creek 
Drainage, Fergus County, Montana. Prepared by Water and Environmental 
Technologies, November 11, 2002.
    \31\ Ibid.
---------------------------------------------------------------------------
The EPA Must Fix Mining Industry Efforts to Keep the Public in the Dark 
        about Toxic Mining Pollution
    It is the public that will suffer from the fact that mining 
operations seem more interested in hiding their pollution than reducing 
it. The EPA has in the past steadfastly defended the Public's right to 
know and must continue to do so in the future.
    The EPA is drafting a proposed rulemaking for completion in 2004 
that will address the issues raised in both the legal cases brought by 
the mining industry against the TRI program. It is vital that the EPA 
keep in mind, as it undergoes this rulemaking, the broad mandate of the 
Public Right to Know Law--EPCRA, which mandates that the public has the 
right to know about toxic chemicals--all toxic chemicals--that are 
being released into their environment.
    As such, it is crucial that this rulemaking address several key 
points. First, the new rule should establish that all mining 
activities, from start to finish, constitute activity that is covered 
under EPCRA. There is nothing ``natural'' about an open-pit mine, and a 
hardrock mining operation is intended, from the first rock pulled from 
the ground to the last waste pile dumped, to produce a commercial 
product--gold and silver and other metals that will be sold into 
market. During this process, toxic chemicals are exposed to the 
environment that never would have been exposed otherwise. These 
chemicals have a real, immediate and long-lasting effect on 
communities. It is vital that the public has access to information 
about such pollution. As such, it is vital that the TRI apply to all 
toxic chemicals released by mining operations, whether those chemicals 
are released during digging, grinding, dumping, or any other mining 
activity or are released from waste rock piles, tailings piles, the 
open-pit or any other location on the mine site. The EPA rulemaking 
should clarify that the TRI applies broadly to all toxic mining 
releases.
    Second, the EPA should make clear that the agency's ``de minimis'' 
rule was never intended to exclude from reporting chemicals that add up 
to large quantities. In fact, the only authority that the EPA has for a 
``de minimis'' rule comes from the doctrine of ``de minimis non curat 
lex''--which means that the law does not concern itself with trivial 
matters. There is no authority in EPCRA for the EPA to exempt even 
small amounts of pollution from reporting. If the ``de minimis'' rule 
were to be applied to vast quantities of pollution, as the court in the 
Barrick case held, the EPA would be beyond its legal authority. The EPA 
cannot allow this erroneous interpretation to stand and must clarify in 
its proposed rulemaking that huge amounts of toxic releases are not 
``trivial'' enough to be exempt from reporting.
    In addition, the EPA should not give in to any industry efforts to 
have waste rock or other mine waste exempted by reporting through a new 
``overburden'' petition.
Conclusion
    In conclusion, I want to emphasize that what we have been talking 
about here today is the public's right to have access to information 
about toxic chemical releases from mining that might have an impact on 
their communities, their livelihoods, their health. We have not been 
talking about reducing the pollution--that too is critically important, 
but is an entirely different issue.
    And yet, the mining industry has repeatedly sued to ensure that the 
public is kept in the dark. It's time for mining companies to stop 
fighting the program and accept responsibility, as other industries 
have, for the toxic chemicals they release into the environment.
    In addition, the EPA should ensure that the TRI continues to work 
by addressing in its rulemaking the problems that the mining industry 
lawsuits have created.
    When allowed to work, the Toxics Release Inventory is a winning 
program for everyone. It gives industries a chance to voluntarily 
control pollution and gain public good will. And it arms the public 
with information that they need and can use to improve their quality of 
life.
                                 ______
                                 
    [An attachment to Ms. Shultz's statement follows:]
    [GRAPHIC] [TIFF OMITTED] T9514.003
    
    [GRAPHIC] [TIFF OMITTED] T9514.004
    

    Mr. Gibbons. Thank you very much, Ms. Shultz, and to all 
our witnesses, I want to thank you for your testimony today.
    Ms. Shultz, I have looked through your testimony and do 
find it very interesting because some things I adamantly 
disagree with. For example, in your written testimony, you say 
that ``Nature does not open pits thousands of feet deep or 
grind up and dump huge piles of rock,'' and that is a quote 
right out of your testimony. Is it?
    Ms. Shultz. Yes. I have the testimony. I can check it, but 
it----
    Mr. Gibbons. I guarantee you, it is a quote right out of 
your testimony. I just read it.
    Ms. Shultz. OK.
    Mr. Gibbons. Now, my question to you is: Can you describe 
for me the process of the Colorado River through the Grand 
Canyon grinding up rocks and making sand and sediment out of 
that, or the wave action of the Great Lakes, or Yellowstone 
with its geothermal activity bringing solutions of arsenic and 
other toxic minerals to the surface, or Carlsbad Caverns or how 
they were formed, if nature does not do the same thing that 
mining does? Tell me.
    Ms. Shultz. What I am saying is that nature does not create 
open pit mines. If I misconstrued that through my testimony, I 
apologize, but what I meant to say was that nature does not 
create open pit mines.
    Mr. Gibbons. What is the difference between a sinkhole and 
a mine?
    Ms. Shultz. The difference is that a sinkhole is not 
necessarily grinding the material up and allowing acid mine 
drainage to form, which----
    Mr. Gibbons. How did the space occur within the rocks below 
that created the open pit?
    Ms. Shultz. I am also not a geologist. I have done----
    Mr. Gibbons. But you are a chemist, and I will say to you 
that----
    Ms. Shultz. I am a chemist.
    Mr. Gibbons [continuing]. This is a chemical reaction to 
the wall rock. It is a chemical reaction of the rock----
    Ms. Shultz. Well, the creation of a sinkhole----
    Mr. Gibbons [continuing]. Being eaten away by the water.
    Ms. Shultz. The creation of a sinkhole I believe is 
geological in the sense that I think it is a shifting of the 
aquifers underground and then the opening up of the landscape 
on top.
    Mr. Gibbons. It is predominantly caused by solution 
dissolving the minerals in the rock, just as Carlsbad Cavern 
was. OK? And let me say that the amount of silt, sediment, and 
the chemical reaction to the rock being ground up in the 
Colorado River is far and away far greater than the total, sum 
total of mining in the United States since Columbus discovered 
America. Just the amount and the weight of that.
    Now, what about highways? Why isn't your group going after 
the construction firm down here and stopping this highway 
construction on 495 for the amount of soil that they are moving 
around and the distribution of minerals and toxic elements that 
are naturally occurring in that soil right down here on 495?
    Ms. Shultz. I will be very honest with you. I am not by any 
means saying that mining waste and mining toxic chemicals are 
the only things to be concerned about. My group----
    Mr. Gibbons. Well, your testimony only relates to----
    Ms. Shultz. Well, my group is a very small group. We have 
several thousand members across the West. Some of our members 
are miners and mining engineers. We focus on hard rock mining 
issues because of the nature of my organization. So that is why 
I focus on the impacts from hard rock mining.
    Mr. Gibbons. It gives a different impression to us from 
your testimony, though. All right.
    There is no doubt that historic mining practices have been 
on more than one occasion bad for the environment, and there is 
no doubt about it that if we are going to have a viable mining 
industry for the future, we have to do better with the 
environment. And we are doing better. And would you agree that 
some mines today--not all mines--do a pretty good job of 
dealing with the environment?
    Ms. Shultz. I would certainly agree that some mining 
operations are much more environmentally aware than others, 
absolutely.
    Mr. Gibbons. And yet their practices do not pollute.
    Ms. Shultz. Actually, the concern that we have is that 
there are many mining operations which do pollute the water and 
the air. Perhaps, as you stated, not all, but the trouble is 
that unless the public has the access to the information about 
the toxic chemicals, they will not know which mines at any one 
time they are going to pollute----
    Mr. Gibbons. Well, let me take, for example----
    Ms. Shultz [continuing]. Or what toxic chemicals are 
released.
    Mr. Gibbons [continuing]. The testimony you wrote in your 
presentation to Congress, which lists all the citations, say, 
of Phelps Dodge. Now, not every one of those citations is a 
massive environmental disaster. But to say that the total 
number of quotes of violations indicates a very bad standard of 
practice I think is misleading.
    Now, you should be very careful and say, well, maybe out of 
the 226 that you cite, five maybe resulted in contamination 
that was uncontrolled and unchecked. A violation from the EPA 
of some standard of control sometimes leads to a citation, but 
may not lead to pollution. Would you agree?
    Ms. Shultz. I actually--there are so many different types 
of Clean Water Act violations, I would definitely agree that 
there are differences from one to the next. But right now all 
we are talking about is the information----
    Mr. Gibbons. But yet you listed them all in one big 
category as if they are the big evil company out there doing 
mining.
    Ms. Shultz. I did not use that term.
    Mr. Gibbons. Well, no.
    Ms. Shultz. What I am saying is that there is environmental 
damage that is caused by some mining operations.
    Mr. Gibbons. All right. Well, let me go back--you have a 
degree in chemistry.
    Ms. Shultz. I do, an undergraduate degree.
    Mr. Gibbons. Yes, and that is far more than I have. I am 
not a chemist by any means, which the Chairman is, and she is 
very bright. And you talk about cyanide periodically throughout 
your testimony and list the dangers of cyanide. There is no 
doubt about it that cyanide at certain levels is highly toxic, 
and you say that here. OK?
    Ms. Shultz. Yes.
    Mr. Gibbons. But like the other things, you list cyanide as 
one of the evils of our world today that we should do away 
with.
    Ms. Shultz. I have not said that, but----
    Mr. Gibbons. No. That was my characterization of your 
testimony. But you do agree that cyanide, according to your 
testimony, pervasively throughout your testimony, is a terrible 
substance no matter what form it is in.
    Ms. Shultz. What I said in my testimony was that at certain 
levels, at acute levels, it can be highly toxic, and that it 
certainly can be damaging to aquatic life and to other 
wildlife.
    Mr. Gibbons. Well, I would agree. Let me ask a question. 
Since you have a degree in chemistry and we want to talk about 
cyanide just for a quick inference here, tell me some naturally 
occurring foods that have cyanide in it that we ingest every 
day.
    Ms. Shultz. I am not a food chemist, so I do not know.
    Mr. Gibbons. Well, how about if I said lima beans? Would 
that surprise you?
    Ms. Shultz. Yes, actually, it does surprise me.
    Mr. Gibbons. How about apple seeds?
    Ms. Shultz. Yes, actually, I was aware that apple seeds 
have cyanide in them. That is why you are not supposed to eat 
the seeds.
    Mr. Gibbons. How about cassava root?
    Ms. Shultz. Not aware of that.
    Mr. Gibbons. There is another one that would surprise you, 
I am sure, as well.
    There are a number of foods out there that have cyanide, so 
cyanide in our environment is almost naturally occurring. I 
have been to plants that make cyanide, and unless cyanide--and 
you and I know--comes out in the HCN form, cyanide is not in 
and of itself deadly.
    Ms. Shultz. But shouldn't the public have the right to have 
the access to the information?
    Mr. Gibbons. Oh, they should, but they should have the 
right--and I am glad you brought that up. Shouldn't they have 
the right to have that information listed in a scientific, 
representative form? When it is a pollution of the waterway, 
yes, they deserve to have that. But simply by moving a rock, 
this rock right here, which is a sample of galena, from that 
position there to this position right here on my desk would be 
considered a release under your definition because I moved it. 
And yet in that position right there, it is nontoxic naturally 
occurring. When it gets to this position right here, it may be 
sitting not in situ, but it is still in the same chemical form.
    Ms. Shultz. But it is in many cases, if you are talking 
about a mining operation, exposed to the air and water when it 
wouldn't have been otherwise.
    Mr. Gibbons. So the erosion of mountains is not an exposure 
to air and water.
    Ms. Shultz. Erosion of mountains itself can lead to some 
toxic chemicals.
    Mr. Gibbons. And as we see in Yellowstone or the Grand 
Canyon or all these others release enormous----
    Ms. Shultz. But so can mining operations----
    Mr. Gibbons. Well, there is. But I think we have to put it 
in a representative form that is not misleading, and that is 
the point we are trying to get at. It is not that these mining 
companies, as you heard, disagree with the idea that Toxic 
Release Inventory shouldn't be out there. But if I move it from 
here and I put it over here, I have created a deficit over on 
this side. I should be given credit for removing it from the 
environment.
    But what you need to do is put it in a representative form 
that really gives the public an idea of what that information 
truly means. Because when you come out and just say 4 billion 
tons of arsenic in rock--and that is an exaggeration, but I 
just threw the number out there because it was a large number. 
There is damage done to the public's perception of an industry 
that provides this world and this economy with a great deal of 
the basis by which we have a quality of life in this country. 
And it comes down to the point where these mining industries 
around here are starting to look elsewhere rather than mine in 
this country. And I guarantee you, I have been to other 
countries, and I have looked at those mining operations. I have 
looked at Phelps Dodge and its operations in Chile, South 
America. Yes, they go down there to get low-salary--that is 
part of it. But the biggest part is the permitting process. And 
the permitting process up here can take 10 years or longer. And 
if you have a $400 million investment and an environmental 
group comes up after you have gone through each and every step 
of an environmental process in the permit and sues you because 
of the TRI-related industry, you are going to delay that 
process, and they will never get their return on their 
investment. And you are well aware of that. You are a very 
smart, educated lady.
    And I am saying we have to treat every industry the same. 
So if you are not going to go down here and attack the 
transportation industry for building highways and moving dirt, 
and you are going to attack the mining industry, you are doing 
a disservice because you are not doing it with fairness and 
equity, nor are you producing for the public meaningful 
information which is representative of what they have a right 
to know.
    So if you talk about cyanide, you better talk about lima 
beans in the same footing as you talk about cyanide from a 
mine.
    Ms. Shultz. As long as the information gets full access 
to--the public gets full access to that information, I would--
--
    Mr. Gibbons. Then it should be presented in a different 
light.
    Ms. Shultz. From the perspective of our members and the 
folks that I represent, these are people that would prefer to 
be able to interpret the information themselves rather than 
having the mining companies or perhaps even the EPA interpret 
it for them. We are talking----
    Mr. Gibbons. You know, that just begs the point. I know 
nothing about a lot of things in this world, and if I had to 
interpret things based on the information I have seen in some 
of these publications or that I have seen from some of the 
organizations that present it, I would have a completely 
different understanding of that than what the truth and the 
science might dictate. That is all I am saying. I am not trying 
to sit here and argue with you. I just disagree sometimes that 
when people say the evil mining industry out there is the worst 
industry in the world, but they fail to understand the real 
concept of why this country is as great as it is.
    Mr. Udall?
    Mr. Tom Udall. Thank you, Chairman Gibbons.
    I would just ask that Mr. Kind's statement be put in the 
record, the Ranking Member.
    Mr. Gibbons. And as long as you are dealing with that, Mr. 
Tom Sullivan with the Small Business Administration has 
submitted written testimony for the record as well, and without 
objection, we will enter both.
    Mr. Tom Udall. Great.
    [The prepared statement of Mr. Sullivan follows:]

       Statement submitted for the record by Thomas M. Sullivan, 
     Chief Counsel for Advocacy, U.S. Small Business Administration

    I am pleased to submit this written statement to assist the 
Subcommittee on Energy and Minerals' oversight of the U.S. 
Environmental Protection Agency (EPA) and my office commends your 
attention to the plight of small employers concerning regulatory 
burden. My name is Thomas M. Sullivan and I am the Chief Counsel for 
Advocacy at the U.S. Small Business Administration (SBA). The Office of 
Advocacy is an independent office charged with representing the 
interests of small business before state and federal lawmakers. As 
Chief Counsel for Advocacy, I am charged with monitoring federal 
agencies' compliance with the Regulatory Flexibility Act (RFA), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA). As such, the views expressed in this written statement 
are my own and do not necessarily reflect the views of the 
Administration or the SBA.
    The Office of Advocacy has worked with the EPA in the development 
of toxics release inventory (TRI) rules since the first rule was issued 
in 1988. In the past sixteen years, my office has developed substantial 
expertise in the TRI and other right-to-know programs, and has 
identified several opportunities for reducing paperwork burdens while 
preserving the right-to-know.

A. Introduction.
    The right-to-know provisions set forth by the Emergency Planning 
and Community Right-to-Know Act (EPCRA) are a cornerstone of modern day 
environmental protection. EPCRA requires facilities to provide 
information on toxic chemical releases, waste management activities, 
and chemical inventories. Under the right circumstances, the 
information acquired through community right-to-know requirements can 
lead to environmental improvements without the need to resort to the 
traditional prescriptive regulatory approach.
    The Office of Advocacy believes that the right-to-know objectives 
can be achieved in a manner that is small-business friendly. Let me 
provide two examples where Advocacy worked with EPA to improve its 
right-to-know regulations, at no cost to environmental protection:
    1) LIn 1994, EPA adopted ``Form A,'' the short form for TRI 
reporting that provides significant burden reduction. Adopted as a less 
burdensome alternative to the ``Form R,'' Form A saves small businesses 
millions of dollars annually.
    2) LIn 1999, EPA eliminated the TRI requirement for reporting 
gasoline at hundreds of thousands of gasoline stations under sections 
311 and 312 of EPCRA. Gas station owners convinced EPA, with Advocacy's 
help, that local authorities know they have gas onsite without the 
requirement of paperwork to document the obvious.
    While we have had successes on TRI burden reduction, EPA included 
chemical and petroleum wholesalers under the TRI reporting requirements 
in 1997 despite Advocacy's opposition on the grounds that their 
releases to the environment were insignificant. Subsequent data 
releases have confirmed that releases for the chemical and petroleum 
industry were inconsequential. In 2001, they accounted for 8.5% of all 
TRI reports filed but only 0.4% of all toxic releases to the 
environment.
    More recently, in Advocacy's September 2, 2003 comment letter to 
EPA Assistant Administrator for Environmental Information Kimberly 
Nelson (attached), Advocacy made recommendations to expand the 
availability of the Form A and other short form reporting. 1 
Currently, the Form A is available to a narrow portion of the total TRI 
reports. By a small revision in the eligibility requirements for the 
short form, EPA could make relief available for thousands of currently 
ineligible facilities and tens of thousands of reports.
---------------------------------------------------------------------------
    \1\ The letter is also available at http://www.sba.gov/advo/laws/
comments/epa03--0902.html and a Fact Sheet summarizing the letter is 
available at http://www.sba.gov/advo/laws/comments/factsepa03--
0902.pdf.
---------------------------------------------------------------------------
    Since 1998, EPA has been working with the Office of Management and 
Budget (OMB) and Advocacy to address burden reduction for TRI 
reporters. EPA has yet to propose significant revisions to the 
reporting rules or the Form A eligibility requirements. The reporting 
burden has increased substantially since 1994, due to the addition of 
new reporting industries and the lowering of reporting thresholds for 
persistent bioaccumulative toxic (PBT) chemicals. EPA has been 
reluctant to provide additional burden relief citing concern about 
potential ``data loss'' being too large. Advocacy continues to urge EPA 
to define quantitatively what constitutes a significant loss of data to 
craft significant burden relief to thousands of facilities without data 
loss.
    To address EPA's concerns, Advocacy recommended in our September 2 
comments that EPA either substitute the Form A with a form that can be 
used by a larger universe of facilities or modify the Form A to provide 
for additional data. In other words, EPA can make use of the Form A for 
a much wider number of forms, or alternatively, modify the Form A to 
include additional details that EPA would prefer to preserve, such as 
the amount of chemical released to air or water. Advocacy also 
recommended that EPA propose a new ``Form NS'' denoting no significant 
change to a baseline report in a Form R. This option could be applied 
to tens of thousands of reports, or thousands of facilities, with 
considerable savings accruing for each year a Form NS is filed. Under 
this option, a facility could simply note that its production changed 
by, for example, less than 10% from the previous year, and a Form NS 
would be filed for that year. These are examples of the types of burden 
reduction options that Advocacy urges the EPA to consider.
    Additional information is provided below on the large number of 
reports that involve zero or minimal releases to the environment. 
Advocacy believes further burden reduction is warranted because of the 
large number of reports compiled at great expense to the regulated 
facilities, without accompanying public benefit. Advocacy is encouraged 
that EPA is preparing an issue paper outlining burden reductions for 
the public to review and comment in the near future. We welcome the 
EPA's release of the issue paper, and will work with the EPA with the 
goal of achieving regulatory relief for the July 2004 reporting period.

B. Regulatory Burden Reduction is Appropriate Where TRI Reporting 
        Imposes Significant Costs Without Significant Right-to-Know 
        Value.
    There are over 23,000 TRI reports that account for less than 0.08% 
of the total wastes reported (of a universe of 78,000 reports in 
reporting year 2000), not including the 13,000 reports submitted on 
Form A. It is our belief that such reports do not warrant the 110 
burden hours that EPA estimates that a facility filing a report for the 
first time would take. As discussed below, Advocacy believes the most 
immediate need for burden reduction relates to EPA's reduction of the 
threshold for lead to 100 pounds from the current 10,000/25,000 pound 
thresholds for reporting year 2001.
    By tightening the reporting thresholds in 2001, the revised 
threshold led to a greater than 400% increase in the number of lead and 
lead compounds reports (8,560 in 2001 from 2,025 in 2000), many of 
which were filed by small businesses reporting for the first time. Many 
of the newly affected small businesses are unfamiliar with the TRI 
reporting process, unlike large firms that may file multiple reports 
for various chemicals every year, and thus many small firms take longer 
to file their reports.
    Since the almost 6,600 first-time reports for lead and lead 
compounds in 2001 were nearly all initiated due to the reporting 
threshold reduction, most of these new reports were from facilities 
that use, and likely release, relatively low levels of lead into the 
environment. The data on 2001 reporting reveals that the majority of 
the reports were for very small or zero onsite releases of lead or lead 
compounds into the environment (see attached Appendix A). The median 
reporting firm reported a total release of only 1 pound. Specifically, 
38% of all reports documented zero releases to the environment, while 
an additional 25% of all reports were for very small releases to the 
environment, with less than 10 pounds of lead or lead compounds. Thus, 
63% of all reports filed for lead and lead compounds likely would have 
no discernable effect on the environment. The majority of those reports 
were filed by small businesses, each of which devoted nearly three full 
weeks of staff time to generate these reports, according to EPA 
estimates. The total environmental releases of lead and lead compounds 
represented by those reports accounted for only 0.001% of all releases 
in 2001. Up to 500,000 staff hours were required to create these 
reports in 2001.
    The burden of complying with TRI reporting for lead and lead 
compounds falls most heavily on firms in the manufacturing sector, 
comprising 84% of all reports in 2001. However, only a few 
manufacturing industry sub-sectors contributed significantly to total 
environmental releases (attached Appendix B shows reports and releases 
for all two digit Standard Industrial Classification (SIC) code 
industries). Overall, manufacturing produced just 5.3% of all 
environmental releases of lead and lead compounds, with the primary 
metals industry (SIC 33) accounting for 83% of all manufacturing 
releases and 16% of manufacturing reports. Two manufacturing industries 
were disproportionately burdened by lead reporting while producing only 
very small environmental releases: electronics manufacturing (SIC 36) 
and fabricated metal products (SIC 34). These two industries comprised 
33% of all manufacturing reports, or 27% of all 2001 reports, but only 
0.9% of manufacturing environmental releases, or just 0.05% of all 
releases. The predominance of small firms in these industries is 
evidenced by the fact that the median report in each industry had zero 
total releases. Consequently, the majority of firms reporting had zero 
or negligible releases yet still bore the same reporting burden as 
firms that accounted for releases that were several orders of magnitude 
larger. Advocacy believes EPA's commitment to reduce the reporting 
burden is also warranted by the large proportion of lead reports with 
low to zero right-to-know value.

C. EPA Did Not Properly Establish Whether Lead Was a Persistent 
        Bioaccumulative Substance Nor Did EPA Implement the Required 
        Peer Review Process.
    In the January 17, 2001 final rule, EPA designated lead as a 
persistent bioaccumulative toxic (PBT) chemical and lowered the 
reporting threshold for lead for the TRI reporting requirement. As 
discussed in my June 13, 2002 written statement for the Regulatory 
Reform and Oversight Subcommittee of the House Committee on Small 
Business, Advocacy believes that EPA did not establish an adequate 
factual basis either for designating lead as a PBT chemical or for 
lowering the reporting threshold for lead to 100 pounds. 2 
According to a report prepared for the Office of Advocacy, small 
businesses pay 60% more per employee than their larger counterparts in 
regulatory expenditures. 3 Advocacy, therefore, has a direct 
interest in agencies making sound regulatory decisions because poorly 
made policy will disproportionately hurt small business.
---------------------------------------------------------------------------
    \2\ Advocacy's June 2002 written statement is available at http://
www.sba.gov/advo/laws/test02--0613.html.
    \3\ The Impact of Regulatory Costs on Small Firms (SBAHQ-00-R-007) 
was conducted by Drs. W. Mark Crain and Thomas D. Hopkins and was 
published in 2001. The research report is available at http://
www.sba.gov/advo/research/rs207tot.pdf.
---------------------------------------------------------------------------
    Advocacy provided our views on this issue in a letter to EPA dated 
April 9, 2001, which articulated that the scientific basis of the rule 
was not borne out in the peer-reviewed literature and ran counter to 
international scientific consensus documents on lead. 4 In 
short, Advocacy found that EPA's treatment of the bioaccumulation of 
metals was inappropriate scientifically. As a result, we urged, at a 
minimum, that EPA submit the science issues underlying this rule for 
peer review before promulgation. EPA has asked the EPA Science Advisory 
Board (SAB) to review this work, which will be addressed further below.
---------------------------------------------------------------------------
    \4\ Advocacy's April 2001 letter is available at http://
www.sba.gov/advo/laws/comments/epa01--0409.html.
---------------------------------------------------------------------------
D. The Agency Did Not Establish a Proper Scientific Basis for the 100-
        Pound Lead PBT Reporting Threshold.
    Advocacy's April 9, 2001 letter to EPA and our June 2002 testimony 
stated in detail our view that EPA failed to establish a proper 
scientific basis for a lead threshold determination. EPA argues that 
lead is a PBT substance, applying the same methodology for identifying 
PBTs as the methodology originally developed for organic substances. 
Consequently, using the methodology employed by EPA, other metals such 
as zinc, copper and iron would similarly be subject to the PBT 
reporting rule, although there is no evidence that lowering the 
reporting thresholds for those metals would contribute to the goals of 
the right-to-know program.
    EPA assumed that once a metal bioaccumulates, it will create a 
hazard. While this is valid for organic chemicals, there is no evidence 
that it is valid for metals. Metals can be accumulated by organisms, 
but there is no one bioconcentration factor (BCF) that can be used to 
assess the bioaccumulation potential, as is done for organic chemicals.

E. Latest Discussion of Science by External Scientists Advising EPA 
        Reconfirms the Lack of Scientific Basis of TRI Lead Rule.
    In a draft Issue Paper on the Bioavailability and Bioaccumulation 
of Metals (Draft Issue Paper) released by EPA on September 22, 2003, 
5 a panel of independent scientists, including two EPA 
scientists, have reconfirmed that the TRI framework used by the agency 
was unsound. As discussed above, the TRI methodology relies on the 
determination that lead is a PBT, using a methodology that was created 
for analysis of organic chemicals. As part of the ongoing effort to 
develop an integrated framework for metals risk assessment, and part of 
the SAB review promised by EPA in the preamble to the January 2001 
final lead rule, EPA commissioned outside experts to develop issue 
papers on state-of-the-art approaches in metals risk assessment for 
several topics.
---------------------------------------------------------------------------
    \5\ Issue Paper on the Bioavailability and Bioaccumulation of 
Metals (Draft Issue Paper), funded by EPA through its Risk Assessment 
Forum under contract 68-C-98-148 to Eastern Research Group, Inc. The 
Metals Issue Paper is available on the EPA website at http://
cfpub.epa.gov/ncea/raf/recordisplay.cfm?deid=59052.
---------------------------------------------------------------------------
    The Draft Issue Paper addresses the state of the science and in 
various parts of the paper the authors assert that a single 
bioaccumulation factor should not be used to classify for general 
hazard classifications of metals, contrary to the TRI approach 
described above. Advocacy believes the paper refutes EPA's finding that 
lead is a PBT by showing that the approach taken by EPA was not 
scientifically sound. 6
---------------------------------------------------------------------------
    \6\ See Appendix C, attached to this statement, for relevant 
excerpts from the Draft Issue Paper.
---------------------------------------------------------------------------
    The Office of Advocacy is pleased that the EPA will be drafting a 
new metals assessment framework based on issue papers and public 
comment over the next few months. After the draft framework is reviewed 
by the EPA Science Advisory Board, EPA will redraft the final metals 
assessment framework, and perhaps some related guidance for agency 
policymakers.

F. Conclusion
    Advocacy welcomes the EPA's efforts to obtain peer review of the 
TRI PBT methodology, and urges the EPA to take immediate steps to bring 
its rule into line with the state-of-the-art science. In the meantime, 
EPA should design burden relief for all TRI reporters, including 
appropriate relief for reporters of all PBT chemicals, including lead. 
We look forward to continuing to work with EPA on this important small 
business matter.
Attachments:
     Appendix A: 2001 Number of Toxics Release Reports: Lead 
and Lead Compounds: Released per Facility
     Appendix B: 2001 Toxics Release Inventory: Lead and Lead 
Compounds: Industry Distribution
     Appendix C: Quotes from EPA's draft Issue Paper on the 
Bioavailability and Bioaccumulation of Metals
     Advocacy's September 2, 2003, comment letter to EPA 
Assistant Administrator for Environmental Information Kimberly Nelson.

[GRAPHIC] [TIFF OMITTED] T9514.001

[GRAPHIC] [TIFF OMITTED] T9514.002


                               Appendix C

EXCERPTS FROM ISSUE PAPER ON THE BIOAVAILABILITY AND BIOACCUMULATION OF 
 METALS FUNDED BY EPA THROUGH ITS RISK ASSESSMENT FORUM UNDER CONTRACT 
              68-C-98-148 TO EASTERN RESEARCH GROUP, INC.

    Page 32: ``It must be noted that BCFs [bioconcentration factors] 
for metals can be highly variable and are inversely correlated to 
exposure concentration [citations omitted], making representative 
single value BCF for a metal meaningless.''
    Page 78: ``In these cases [the vast majority of the metals/
organisms addressed], the latest scientific data on bioaccumulation 
does not currently support the use of BAF [bioaccumulation factors] and 
BCF data when applied as generic threshold criteria for the hazard 
potential of metals.''
    Page 29: ``The principle [sic] theoretical features of the BAF/BCF 
model that make it applicable to neutral organic substances also make 
it inapplicable to inorganic metal substances.''
    Page 32: ``Based on the inherent assumptions of the BCF and BAF 
model and on the environmental and toxicological behavior of the 
organic substances from which they were developed and validated, for 
the vast majority of inorganic metals evaluated, the scientific basis 
for broad application of the BAF/BCF model is lacking in the context of 
hazard assessment.''
    Page 32: ``The approach of using one simplified bioaccumulation 
model (BCF and BAF) and applying it to inorganic metals ignores the 
basic physical and chemical differences between organic and inorganic 
substances and is not supported by theoretical and empirical weight of 
evidence.''
                                 ______
                                 

                           September 2, 2003

The Honorable Kimberly T. Nelson
Assistant Administrator for Environmental Information
U.S. Environmental Protection Agency
Ariel Rios Building, 2810A
1200 Pennsylvania Avenue, N.W.
Washington, DC 210460

Re: LToxic Chemical Release Reporting; Alternate Threshold for Low 
Annual Reportable Amounts; Request for Comment on Renewal Information 
Collection; Docket OEI-2003-0026; 68 Fed. Reg. 39071 (July 1, 2003).

Dear Assistant Administrator Nelson:

    The Office of Advocacy of the U.S. Small Business Administration is 
submitting these comments on the Environmental Protection Agency's 
(EPA) above referenced continuing Information Collection Request (ICR) 
for the Toxic Release Inventory (TRI) Form A, the alternate threshold 
form provided as a substitute for the longer Form R. Advocacy 
encourages the EPA to take this opportunity to achieve significant 
paperwork burden reductions for small business reporters, and we offer 
specific recommendations to assist the EPA in accomplishing this 
important objective through Form A revision.
    In 1991, the Office of Advocacy (Advocacy), by petition, initiated 
the rulemaking process that resulted in the promulgation of the Form A. 
We are pleased that EPA created this form in 1994, which the agency 
estimated would result in several hundred thousand hours in annual 
paperwork savings. However, the current Form A is only available to a 
very narrow proportion of the reports that could utilize the ``short 
form,'' and Advocacy recommends that EPA pursue regulatory revisions to 
permit significant additional paperwork savings. Further, Form A is 
currently unavailable to the thousands of reporters of persistent 
bioaccumulative toxic (PBT) chemicals.
    Advocacy was established pursuant to Pub. L. 94-305 to represent 
the views of small business before Federal agencies and Congress. 
Advocacy is an independent office within the U.S. Small Business 
Administration (SBA), so the views expressed by Advocacy do not 
necessarily reflect the views of the SBA or the Administration. The 
Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), gives small 
entities a voice in the rulemaking process. The RFA requires Federal 
agencies, such as the EPA, to consider alternatives to avoid overly 
burdensome regulation of small entities. 1 Advocacy is also 
required by Section 612 of the RFA to monitor agency compliance with 
the RFA. 2
---------------------------------------------------------------------------
    \1\ Pub. L. No. 96-354, 94 Stat. 1164 (1981) (codified as amended 
at 5 U.S.C. Sec. Sec. 601-612).
    \2\ 5 U.S.C. Sec. 612.
---------------------------------------------------------------------------
    On August 13, 2002, President George W. Bush signed Executive Order 
13272, requiring Federal agencies to implement policies protecting 
small businesses when writing new rules and regulations. 3 
Executive Order 13272 instructs Advocacy to provide comment on draft 
rules to the agency that has proposed a rule, as well as to the Office 
of Information and Regulatory Affairs (OIRA) of the Office of 
Management and Budget. 4 Executive Order 13272 also requires 
agencies to give every appropriate consideration to any comments 
provided by Advocacy. Under the Executive Order, the agency must 
include, in any explanation or discussion accompanying publication in 
the Federal Register of a final rule, the agency's response to any 
written comments submitted by Advocacy on the proposed rule, unless the 
agency certifies that the public interest is not served by doing so. 
5
---------------------------------------------------------------------------
    \3\ Exec. Order No. 13,272 Sec. 1, 67 Fed. Reg. 53,461 (Aug. 13, 
2002) (``E.O. 13272'').
    \4\ E.O. 13272, at Sec. 2(c), 67 Fed. Reg. at 53,461.
    \5\ Id. at Sec. 3(c), 67 Fed. Reg. at 53,461.
---------------------------------------------------------------------------
    Additionally, Advocacy and OIRA signed a Memorandum of 
Understanding to reduce unnecessary regulatory burdens for small 
entities. One component of the MOU is that OIRA may discuss and resolve 
with an agency Advocacy's concerns about an information collection 
requirement in a rule that OIRA is reviewing under the Paperwork 
Reduction Act.

I. Paperwork Regulations Require EPA To Minimize Paperwork Burdens for 
        All Reporting Entities, Especially Small Business Reporters.
    Under the Federal paperwork regulations administered by the Office 
of Management and Budget (OMB), EPA is directed to develop the least 
burdensome reporting form to achieve its statutory and regulatory 
purposes. Each Federal agency is required to take ``all practicable 
steps to develop separate and simplified requirements for small 
businesses and other small entities.'' 6 In addressing this 
requirement, the EPA guidance instructs EPA staff to describe in the 
ICR justification ``alternative collection procedures or other actions 
(e.g. a reporting exemption) that [EPA] will institute to minimize the 
burden for small entities.'' Further, OMB regulations require that the 
paperwork have ``practical utility'' to the agency. 7 In our 
view, reports of zero and minimal releases do not satisfy this legal 
requirement. OMB may disapprove, in whole or in part, any ICR if the 
agency has failed to initiate procedures to revise the ICR, or failed 
to publish a final rule, in accordance with the above paperwork 
requirements. In sum, EPA is required to explore all reasonable steps, 
including streamlined reporting requirements, particularly for small 
businesses, as a means to reduce paperwork burdens and ensure that the 
required paperwork has ``practical utility.''
---------------------------------------------------------------------------
    \6\ 5 C.F.R. Sec. 1320.6(h).
    \7\ 5 CFR Sec. 1320.5(d)(1).
---------------------------------------------------------------------------
II. EPA Must Permit Streamlined Reporting Under TRI for All Small 
        Sources in Order to Comply with the Requirements of the 
        Paperwork Reduction Act.
    EPA must implement streamlined reporting for all small sources, not 
merely a small subset, to comply fully with the above described 
regulations and fulfill its responsibility under the Paperwork 
Reduction Act. First, as explained below, streamlined reporting for all 
small sources is a ``practicable step'' under Sec. Sec. 1320.4(b)(1) 
and 1320.6(h) which minimizes paperwork burdens to all reporting 
entities, particularly to small businesses, while achieving the 
statutory purposes of right-to-know. Second, the current inclusion of 
full Form R reports from any small sources violates the requirement of 
Sec. 1320.4(b) that the provided data have ``practical utility'' to the 
agency because, by definition, small source reports have little 
environmental or health significance. Thus, streamlined reporting for 
small sources is not only an appropriate approach, but also a necessary 
approach for minimizing the reporting burden on both small and large 
businesses that release small quantities of TRI chemicals.

III. The Universe of Current Form A Reports is Too Narrow.
    Form A currently provides the right-to-know information for only a 
very small universe of TRI reporters. A facility may use the Form A 
(certification form) only if the total wastes do not exceed 500 pounds 
in a single year (less than two pounds/day). In other words, the 
facility must count all releases, all transfers for treatment, 
disposal, and amounts recycled on- or off-site and amounts used for 
energy recovery. In Advocacy's view, this is too restrictive for about 
30% of the additional TRI reports, which also reflect small releases, 
and do not qualify for the Form A. Over one hundred similar comments 
are found in the earlier rulemaking record which led to the adoption of 
the Form A in 1994. In addition, Form A is unavailable to facilities 
that report PBT chemicals, as noted above.
    Advocacy is offering a number of revisions to Form A program to 
expand the universe of Form A reports, reduce paperwork burdens 
significantly for small entities, and maintain the integrity of TRI 
data for right-to-know purposes. First, an expansion of the current 500 
pound total reportable amount threshold for Form A eligibility to 5,000 
pounds would reduce the reporting burden on small releasers. Second, 
EPA should institute an ``Enhanced Form A'' to replace the existing 
Form A that includes information about release and waste management 
amounts reported in broad ranges for small releasers. The Expanded Form 
A should also be made available for PBT chemicals. Advocacy believes 
that expanding the number of Form As and introducing the Enhanced Form 
A will provide burden relief to small entities and preserve all of the 
significant information currently collected via Form Rs. Additionally, 
Advocacy is presenting an alternative program of ``No Substantial 
Revision Certification'' (Form NS) that could work in conjunction with 
Form A revisions to offer more choices for burden reduction to 
different industries. Finally, Advocacy is suggesting burden relief 
targeted directly at reporters who would report zero releases.

IV. EPA Should Consider a Variety of Approaches to Minimize TRI 
        Paperwork Burdens, Including Expansion of Form A Eligibility 
        and a New Form for Nonsubstantial Revisions.

A. EPA Committed to Pursuing Paperwork Reduction Efforts in 1997.
    When EPA promulgated the final rule adding seven reporting 
industries in April 1997, it committed to achieve meaningful paperwork 
reduction for all affected reporters. Indeed, it is our understanding 
that EPA promised to effectuate a net reduction in paperwork to offset 
the increased paperwork hours generated by the industry expansion rule. 
Since 1997, EPA has expanded paperwork burdens on a number of 
predominantly small business industries, particularly chemical and 
petroleum wholesalers from the 1997 industry expansions, whose releases 
are almost entirely below 1,000 pounds per year, and a wide range of 
industries who became first-time reporters when the threshold for lead 
and lead compounds reporting was dropped to 100 pounds in 2001. EPA's 
economic analyses showed that these industries were potentially facing 
significant reporting costs using Form R. With an expanded version of 
Form A, thousands of new reporters would achieve substantial paperwork 
reduction. Institution of a Form NS certification would potentially be 
more inclusive and bring burden relief to an even larger universe of 
reporters.
    EPA, OMB and the Office of Advocacy produced a report for the 
National Advisory Council for Environmental Policy and Technology 
(NACEPT) Toxics Data Reporting Committee (TDRC) in 1998 that described, 
in detail, various alternatives for modifying Form A eligibility. 
8 Unfortunately, EPA has not acted upon any of these 
alternatives, citing in part NACEPT's supposed rejection of the Form A 
alternatives. However, as discussed below, the NACEPT TDRC did not 
reject these alternatives. Advocacy also encourages the agency to 
reconsider some misconceptions about the TRI program as it considers 
burden reduction options, which we also address below.
---------------------------------------------------------------------------
    \8\ ``Analysis of Changes to the Alternate Threshold Provisions,'' 
presented to The National Advisory Council for Environmental Policy and 
Technology, Toxics Data Reporting Committee, May 18, 1998, prepared by 
representatives from the Environmental Protection Agency, Office of 
Management and Budget, and Small Business Administration.
---------------------------------------------------------------------------
B. EPA Failed to Address Issues Raised in January 2003 and Needs to 
        Reconsider the Legal and Factual Issues Underlying the Burden 
        of TRI Reporting.
    TRI reporters filed comments in the winter of 2002/2003 during the 
public comment period for the prior ICR. EPA failed to respond in a 
substantive manner to many of the specific comments, relying primarily 
on its responses to the previous round's Response to Comments for Form 
A. 9 Although the January 2003 Response to the Office and 
Management and Budget's Terms of Clearance document covers much of the 
same ground, EPA did not respond to some critical issues, thereby 
impeding OMB's review. 10 For example, EPA's notation of 
concern about ``data loss'' if the Form A eligibility is expanded in 
any fashion does not provide a substantive response, and is 
inconsistent with its 1994 discussion of this issue when the Form A was 
originally issued. EPA should carefully review its previous analyses 
and determinations, in light of the comments presented here and by 
other commenters, so that it can design lawful and meaningful relief 
for TRI reporters.
---------------------------------------------------------------------------
    \9\ Response to Comments Received on the Request for Comment on 
Renewal Information Collection for Toxic Chemical Release Reporting for 
the Form A Certification Statement (EPA ICR No. 1704.06, OMB No. 2070-
0143, 67 FR 44197).
    \10\ EPA's Response to OMB's January 2003 Terms of Clearance notice 
for the ICR renewal of Form A. EPA 1704.06, OMB 2070-01143.
---------------------------------------------------------------------------
    During the prior ICR review, EPA did not adequately address the 
issue of raising the total reportable amount threshold from 500 to 
5,000 pounds (alternatively to 1,000 or 2,000 pounds) or the alternate 
threshold from 1 million to 10 million pounds. The agency stated that 
any expansion of the Form A eligibility could be inconsistent with the 
legal requirement that any revised reporting scheme must address the 
``substantial majority'' of releases subject to the original reporting 
requirements. The agency appears to have overlooked the EPA's 1994 
legal interpretation that certifications in Form A automatically ensure 
that the substantial majority requirement is being met, because the 
certification itself provides the information through range reporting 
(also allowed in Form R itself): 11
---------------------------------------------------------------------------
    \11\ Range reporting means that the reporter is permitted to report 
figures in broad ranges, such as 1-10 pounds, rather than as a point 
estimate, for very small release numbers (under 1000 pounds in the case 
of the Form R for non-PBT chemicals).
---------------------------------------------------------------------------
        [The] certification statement...serves to satisfy the statutory 
        requirement of section 313(f)(2) for reporting to be obtained 
        on a substantial majority of releases of a chemical. 
        12 ... a certification statement is necessary in 
        order to maintain public right-to-know and to meet the 
        statutory `substantial majority' of releases requirement. The 
        certification statement relates to a range volume for a given 
        chemical contained in total waste that can have multiple 
        connections to quantitative line items as reported on Form 
        R.... EPA believes that the category and level established in 
        this final rule are such that replacement of full Form Rs, for 
        these eligible reports, with certification statements provides 
        the public with an adequate level of information. 13
---------------------------------------------------------------------------
    \12\ November 1994 EPA Response to Comments Document, Establishment 
of Alternate Threshold, at page 52.
    \13\ Ibid., at page 54.
---------------------------------------------------------------------------
    Thus, Advocacy believes EPA can meet the ``substantial majority'' 
requirement through any certification statement, as long as it retains 
a certification requirement which serves as a form of range reporting, 
as explained above. Therefore, there is no legal obstacle to changing 
the future eligibility requirements for Form A.
    In addition, contrary to EPA's statement in the January 2003 
response to Terms of Clearance, the December 1998 NACEPT report does 
not contain any consensus that the loss of TRI information was too 
great or that Form A eligibility should not be revised. It appears that 
some individuals favored increased eligibility for the Form A, and 
others opposed it. However, the report notes that the Committee did not 
have adequate time to reach consensus opinions. ``Since time did not 
permit the development of recommendations by the committee on this 
topic [Form A options], the following paper is intended to capture the 
committee's discussion for use by the federal agencies.'' 14 
Large businesses, states, and environmental interests were represented 
on the Committee, but no small business representatives were appointed, 
despite requests by those trade groups to participate. Based on our 
experience working with small business trade associations, we find that 
small businesses are the largest users of Form A. Additional small 
business representation very likely would have lent additional support 
for an increase in Form A eligibility.
---------------------------------------------------------------------------
    \14\ NACEPT report, at page 22.
---------------------------------------------------------------------------
    In addressing the issue of raising the reportable amount threshold 
or excluding certain waste categories from consideration in the January 
2003 Response to Terms of Clearance, EPA argued that either scenario 
was inapplicable because the ``data loss'' would be too great. 
15 Table 6 in that document presents summations of data that 
would not be reported on Form Rs under various threshold and reportable 
waste category revisions. 16 EPA, however, never defines 
quantitatively what constitutes a significant loss of data, allowing 
the data loss argument to hinge solely upon the summary figures in 
Table 6 outside of a meaningful contextual framework in which to 
analyze the significance of non-reported data under various reporting 
regimes. In fact, the data that would no longer be reported on Form R 
from raising the reportable amount threshold from the current 500 
pounds to 5,000 would be a mere 0.1% of total wastes for reporting year 
2000. Under the status quo, 99.99% of all wastes are reported on Form 
R, and this would decline to 99.92% under a 5,000 pound threshold while 
over 23,000 additional reports qualified for burden relief.
---------------------------------------------------------------------------
    \15\ January 2003 EPA's Response to OMB's January, 2001 Terms of 
Clearance notice for the ICR renewal of Form A (EPA 1704.06, OMB 2070-
01143).
    \16\ Ibid., at page 7.
---------------------------------------------------------------------------
    EPA must recognize that data reported on Form A rather than Form R 
is not ``lost,'' because Form A is a form of range reporting (as EPA 
explained in 1994). 17 To further the discussion of burden 
relief through an expansion of Form A eligibility, EPA must establish a 
measure for determining whether there is significant ``data loss.'' 
Advocacy suggests that EPA examine the TRI environmental indicators 
developed by EPA over many years as one potential method for deciding 
which data addresses a risk to the local community as to warrant full 
Form R reporting. Without this type of quantitative assessment, EPA's 
claim of ``data loss'' inhibits serious consideration of meaningful 
burden relief for small businesses.
---------------------------------------------------------------------------
    \17\ In its 1994 response to comments, EPA stated that the 
certification statements themselves, at least for the current Form A, 
provided the public with ``an adequate level of information.'' This 
statement cannot be reconciled with EPA's current view that any 
revision of the Form A eligibility could jeopardize the appropriate 
level of information.
---------------------------------------------------------------------------
C. Advocacy's Suggested Revisions and Comments.
    Advocacy offers five specific recommendations for burden reduction 
to small entities through Form A revision, which are addressed below:

1. Expansion of total reportable amount and alternate thresholds.
    Advocacy urges serious consideration of the three most easily 
justifiable revisions to the Form A eligibility: (1) raising the level 
of the total reportable amount threshold from 500 to 5,000 pounds; (2) 
raising the alternate threshold amount from 1 million to 10 million 
pounds, and (3) revising the calculation of the reportable amount to 
remove energy recovery and recycling from consideration.
    Raising the total reportable amount threshold will provide 
significant burden reduction for small entities. Raising the total 
reportable amount threshold from 500 to 5,000 pounds generates a 
significant amount of paperwork burden reduction by expanding 
eligibility from 26% to 40% of all non-PBT reports. 18 The 
amount of data ``loss'' is 0.1% of production-related wastes, compared 
to 0.01% for the current Form A. Furthermore, as discussed above, the 
data is not actually lost when reported on a Form A rather than Form R. 
19 Advocacy is, however, proposing the expansion of the 
eligibility thresholds in conjunction with the use of an Enhanced Form 
A certification. The Enhanced Form A, discussed in more detail below, 
would institute range reporting for the waste amounts, further 
increasing the utility of data from Form A reporters.
---------------------------------------------------------------------------
    \18\ Based on reporting year 2000 data.
    \19\ As discussed above, EPA's position in the 1994 response to 
comments upon introduction of the Form A was that Form A captured an 
``adequate level of information.''
---------------------------------------------------------------------------
    Expanding the alternate threshold from 1 million to 10 million 
pounds would provide additional burden relief to small businesses and 
others who release small amounts. Many reporters that would otherwise 
be eligible for Form A based on waste amounts are ineligible because 
they use more than 1 million pounds of the chemical. Advocacy's review 
of Massachusetts data in 1995 revealed that about 5% additional 
facilities would have qualified for Form A based on a 10 million pound 
threshold. These facilities had total reportable amounts that met the 
current threshold, and could have filed Form A if not for their high 
use of the reported chemical. In effect, prohibiting otherwise 
qualified filers from using the less costly Form A sets up perverse 
incentives that punish the most efficient chemical users: those that 
use larger quantities but engage in more efficient practices to reduce 
releases and the need for treatment, disposal, or recycling.
    Further, Advocacy recommends that EPA explore elimination of energy 
recovery and recycling from the calculation of the reportable amount. 
As explained below, there is no risk to the community that arises from 
this offsite activity. Also, exclusion of this activity would provide 
further incentives for sound environmental management as those 
facilities would be rewarded for increased activity in these areas. 
Information about this activity could be captured, alternatively, in 
the Enhanced Form A, as discussed below.

2. Enhanced Form A.
    As an alternative to a simple expansion of Form A eligibility, 
Advocacy proposes consideration of an Enhanced Form A that incorporates 
range reporting for waste information. By implementing the Enhanced 
Form A alongside an upward revision of the eligibility thresholds, EPA 
can accomplish significant burden reduction while increasing data 
quality over the Form A approach. Advocacy recommends that the Enhanced 
Form A be available for reporters of PBT chemicals with fewer than 50 
pounds of total wastes. We describe below two alternative methods for 
establishing eligibility for the Enhanced Form A (based on either the 
current reportable amount, or total onsite release).
    The Enhanced Form A has the benefit of carrying burden reduction 
while substantially preserving the information currently reported by 
small reporters on Form R. The Enhanced Form A would preserve the 
practical utility of all reported data by allowing right-to-know users 
to easily assess the size of releases and waste activities without 
placing further undue burden on reporters that release insignificant 
amounts of chemical waste. Reporters would simply check the appropriate 
range box for each category of on- and offsite releases and each 
recycling, energy recovery, or transfer activity undertaken. Because 
those reports that qualify capture by definition small releases, the 
ranges provide sufficient information for data users. Furthermore, as 
noted above, range reporting is allowed on Form Rs under appropriate 
circumstances, thus range reporting in and of itself is not an 
impairment to data quality.
    The Enhanced Form A should also be available for PBT reporters with 
less than 50 pounds of total annual reportable amount. As with other 
chemicals, many PBT reporters have total releases of either zero or an 
insignificant amount. While PBT chemicals may present greater risks to 
human health than other listed chemicals, it does not follow that an 
Enhanced Form A reporting option would not provide data users all of 
the information needed for right-to-know uses while offering burden 
reduction for the reporter. For example, in 2001, 47% of the nearly 
8,600 reports for lead and lead compounds showed on-site releases less 
than 1 pound, with 37.5% of all reports containing zero on-site 
releases. Furthermore, 31.5% of all reports had less than 50 pounds of 
total waste quantities. The introduction of an enhanced Form A would 
provide burden reduction while maintaining all of the relevant data 
from these small releasers of PBTs.
    A potentially more practical alternative would be to change the 
threshold calculation to total on-site releases (section 8.1 and 8.8 of 
Form R). Under this option, thresholds would be revised downward to 100 
pounds for non-PBT chemicals and 10 pounds for PBT chemicals. This 
would offer greater burden relief by extending significantly the number 
of reports eligible under an Enhanced Form A. Additionally, an onsite 
release-only threshold actually captures more data significant to 
communities and right-to-know users. Under the current system, a 
reporter could qualify for Form A by virtue of having only 500 pounds 
of total wastes, even though all 500 pounds are onsite releases. Under 
the onsite release-only system, this reporter would be forced to file a 
Form R due to high onsite releases, while currently ineligible 
reporters with zero releases and 1,000 pounds of offsite recycling 
would file the Enhanced Form A.
    Because the threshold determination for eligibility to file the 
Enhanced Form A could be based on releases rather than total 
production-related wastes, the primary data removed from Form R 
reporting is non-release data, including recycling, energy recovery, 
and treatment. These data, however, are not lost but rather reported 
over ranges on the Enhanced Form A. The data is thus preserved, and its 
utility left intact for all required uses. Importantly, the amount of 
data moved from Form R reporting to range reporting on the Enhanced 
Form A would be negligible under a reporting threshold of 100 pounds of 
on-site releases for non-PBT chemicals and 10 pounds for PBT chemicals. 
For instance, if an Enhanced Form A were available for lead and lead 
compounds reporters in 2001 who reported less than 10 pounds of on-site 
releases, 63% of all reports would qualify for the Enhanced Form A 
burden relief, with just 0.001% of on-site releases and 7% of all other 
wastes reported on the Enhanced Form A. Virtually all of the 
significant right-to-know data is preserved on Form R, releases to the 
environment of the local community, while data on off-site transfers 
and recycling related to the small releasers is largely preserved 
through range reporting.

3. No Substantial Change (Form NS).
    An alternative to expanding Form A eligibility, or modifying the 
Form A, is to allow TRI reporters to file a certification of No 
Substantial Revision (Form NS) from a baseline Form R filing. This 
option would be open to both PBT and non-PBT reporters who qualify.
    Advocacy estimates that the Form NS would provide burden relief for 
at least 50% of all reports in a given year, without any significant 
diminution of the right-to-know information, versus 26% of non-PBT 
reports currently eligible for Form A reporting. Even expanding the 
Form A eligibility threshold to 5000 pounds of reportable waste would 
only offer relief to 40% of non-PBT reporters. This option would 
provide relief to a wide range of PBT and non-PBT reporters over and 
above the relief provided by Form A since use of Form NS would relieve 
reporters from reportable amount calculations (addition of Form R 
Sections 8.1 through 8.7) required for Form A.
    Under Form NS, a facility would file a Form R in the baseline year 
then file a Form NS for the next consecutive four years. The following 
year the facility would once again be required to file Form R to re-
establish the proper baseline. We anticipate that EPA would utilize the 
baseline Form R as the placeholder for the Form NS in the TRI database 
until the next Form R is provided by the facility, so that the TRI data 
is preserved each year the Form NS is filed, with an indicator that the 
Form NS was filed in that reporting year, preserving the full right-to-
know data for the public.
    Form NS could be used by any facility that does not modify its 
annual production by more than 10% AND does not change any production/
treatment/disposal processes at the facility. 20 For these 
facilities, the baseline Form R would reasonably represent all the 
activities that would have been reported on a new Form R.
---------------------------------------------------------------------------
    \20\ In other words, a facility has no changes in whether or not 
the facility engaged in the practices reported in the elements 8.1 
through 8.8 on Form R. For example, if a facility reported data only 
for onsite releases and offsite recycling in the baseline year Form R, 
it could file Form NS the following year only if its production changed 
by less than 10% and it again would report only onsite releases and 
offsite recycling. No limitation would be placed on the variation of 
the amounts of onsite releases and offsite recycling, but all other 
fields would need to remain zero to qualify for Form NS.
---------------------------------------------------------------------------
    Because the 10% change requirement would be inappropriate for very 
small releases, Form NS could also be used by any facility for which 
the total onsite releases (Form R Section 8.1 plus 8.8) are less than 
100 pounds for non-PBT chemicals and 10 pounds for PBT chemicals 
(except dioxins) in both the base year and the new reporting year. This 
would also be limited to facilities that do not change any production/
treatment/disposal processes at the facility.
    The small releaser stipulation has the advantages of eliminating 
the additional work needed to calculate the reportable amount 
quantities of the Form A (Form R Sections 8.1-8.7), while still 
retaining the Form A option for those qualified to use it, and 
providing burden reduction for facilities with insignificant changes 
from the baseline Form R. These reports are considered insubstantial 
revisions because the total releases fall into ranges of between 0-10 
or under 100 pounds. This de minimis approach is modeled on the 
structure of the current range reporting available in the Form R, where 
releases under 1,000 pounds can be reported in ranges. Consistent with 
the current range reporting for Form R, the Form NS reporting range of 
0-10 or under 100 would reflect the reduced need for accurate estimates 
in making small quantity estimates, in comparison to releases of over 
1,000 pounds, where EPA requests two-digit accuracy (where feasible) on 
Form R. For example, in the range of 1-10 pounds on the Form R, EPA 
permits the report of a single range which constitutes an entire order 
of magnitude (less than single-digit accuracy).
    Form NS targets significant burden reductions for small reporters, 
and there is a large overlap between small reporters and small 
businesses. Small businesses face higher per form reporting costs than 
large firms, so the use of a simpler Form NS would save each small firm 
proportionally more than a large firm. Furthermore, since this option 
is designed to produce small business burden relief while preserving 
the integrity of important information, Form NS would not apply to the 
largest releases: onsite releases (Form R Sections 8.1 and 8.8) over 
10,000 pounds annually. A 10% change in production for a large quantity 
releaser could be a significant change to the local community.

4. Relief for Zero Reporters.
    Advocacy recommends that EPA eliminate the requirement to file 
either Form R or Form A for reporters that would report zero onsite 
releases in Sections 8.1 and 8.8 on Form R. The rationale for removing 
the reporting requirement is that reports of zero releases provide no 
practical utility to data users. If data from this class of reporters 
is desired for purposes other than community right-to-know, a separate 
data collection request should be submitted to OMB for clearance.
    A good illustration of the severe justification for burden relief 
is the situation faced by the petroleum wholesalers in the 2001 
reports. One major petroleum firm with 35 terminals filed 213 Form Rs, 
with 78 zero release reports (37% of the total), including 16 zero lead 
release reports. These were not simply zero releases onsite, but 
represented zero releases and zero total wastes. This example alone 
makes a good case for total relief for zero reporters and the use of 
Form A for PBT filers and the Form NS.

5. Range Reporting.
    As EPA found in 1991, the option to report in ranges, rather than 
in point estimates provides considerable burden savings to the 
reporter. It estimated a 9.5 hour reduction in 1991 when it was 
proposing to promulgate the range reporting option. 21 Range 
reporting will save time if the needed precision in reporting is 
reduced, for example from two digit precision to one digit (as 
discussed above). Advocacy urges EPA to return range reporting to the 
pollution prevention section (section 8), so that the savings 
previously permitted in sections 5 and 6, the releases sections, can be 
captured. Currently, entries in sections 5, 6 and 8 cover the same 
releases, and facilities are no longer able to capture these cost 
savings. Advocacy also recommends that EPA restore the range reporting 
footnote in section 5.
---------------------------------------------------------------------------
    \21\ 56 Fed. Reg. 1154, January 11, 1991.
---------------------------------------------------------------------------
    In addition, Advocacy urges EPA to reconsider the elimination of 
range reporting relief for the PBT reporters. The PBT reporters are 
subject to considerable burden for reporting releases that equal or 
approach zero. For these reasons, we believe that the range reporting 
option is suitable for such reports.

V. Conclusion.
    Advocacy looks forward to working with EPA to identify appropriate 
avenues for burden reduction for small firms, while maintaining the 
integrity of the TRI reporting system. Given the many thousands of zero 
release reports, and many more thousands of minimal release reports, we 
believe that it is imperative that EPA promulgate appropriate relief in 
time for the July 2004 reports.
    Thank you for your consideration in these matters, and please do 
not hesitate to contact me or Kevin Bromberg ([email protected] or 
202-205-6964) of my staff.

                               Sincerely,

                           Thomas M. Sullivan

                       Chief Counsel for Advocacy

                             Kevin Bromberg

                  Assistant Chief Counsel for Advocacy

cc: LEPA Docket Center, EPA West, Room B102, Environmental Protection 
Agency, 1301 Constitution Avenue, N.W., Washington, DC 20460

   LDr. John D. Graham, Administrator, Office of Information and 
Regulatory Affairs, Office of Management and Budget
                                 ______
                                 
    [The prepared statement of Mr. Kind follows:]

        Statement of The Honorable Ron Kind, Ranking Democrat, 
              Subcommittee on Energy and Mineral Resources

    Today's hearing focuses on the ``The Toxic Release Inventory and 
its Impact on Federal Minerals and Energy.''
    However, instead of focusing solely on the mining industry's 
complaints about the public knowing more about what it does, it would 
be a better use of the Subcommittee's time to address the public health 
issues caused or potentially caused by the mining industry.
    Congress created the Toxic Release Inventory, as part of the 
Emergency Planning and Community Right-to-Know Act of 1986. Since then, 
the Environmental Protection Agency, which administers the program, has 
required industrial facilities to disclose to the public the volume and 
type of toxics they discharge into the environment or manage for 
recycling or disposal. Further, through a 1997 regulatory rule-making, 
the EPA expanded the TRI to cover seven additional industry sectors, 
including electric utilities and coal and metal mining industries.
    Since its inclusion in the TRI, the mining industry has worked to 
be de-listed from the inventory, asserting that the substances mining 
operators are required to report are ``naturally occurring 
compounds''--entirely separate and far less toxic than man-made 
chemicals produced by the manufacturing industry.
    However, as these compounds are unearthed and ore is ground and 
processed, billions of pounds of lead, arsenic, mercury, and other 
persistent, bioaccumulative, and toxic chemicals are released into the 
land, air and water.
    Even if they occur naturally, these substances have been linked to 
cancer and reproductive and neurological problems. Clearly, the Toxic 
Release Inventory is a powerful tool that enables communities to 
encourage the reduction of toxic releases and improve local 
environmental quality.
    It is important to note the success of the TRI in reducing toxic 
chemical and waste releases throughout the United States. Though the 
inventory imposes no penalties for poor records, it empowers 
communities to work with local industries to reduce toxic wastes, 
create pollution prevention plans, and demonstrate improvements to the 
environment. As a result, the total reported toxic releases by covered 
industries have dropped by almost 50 percent since 1986.
    Still, some mining companies challenge the public right-to-know.
    In 2001, the hardrock mining industry reported the production of 
2.8 billion pounds of toxic waste. Moreover, a large portion of these 
chemicals are persistent, bioaccumulative and toxic, meaning they are 
not broken down by natural processes, accumulate within organisms over 
time and can lead to serious health degradation and even death.
    During the oversight hearing held here last week, I submitted for 
the record a series of articles by Ben Raines of the Mobile Register 
that won him the 2002 John B. Oakes Award for Environmental Journalism. 
Mr. Raines is investigating the dilemma of methylmercury contamination 
in the Gulf of Mexico and paints a vivid picture of the problems 
associated with toxic bioaccumulation.
    Mercury, in its natural liquid form, is the common element used in 
thermometers. Though its fumes are toxic, it is not readily absorbed by 
the human body. However, when mercury binds with organic molecules in 
the environment, it forms a highly toxic compound called methylmercury.
    This chemical enters the aquatic environment through air discharges 
from coal-fired power plants, runoff from local industry, and the 
dumping of drilling fluids from offshore platforms. The chain of events 
begins with bacteria that live in the ocean and, through the food 
chain, builds in the bodies of each level of sea life as methylmercury 
cannot be broken down by natural biological processes.
    The process of bioaccumulation eventually leads to humans when fish 
caught in the Gulf are offered at market or in local restaurants. Here 
is a quote from one of the articles that will help put this issue into 
perspective: ``The tests commissioned by the Register indicated that a 
4-ounce serving of a 10- to 20-pound redfish caught off Dixie Bar at 
the mouth of Mobile Bay would contain all the mercury a 158-pound adult 
male could safely handle in a month, under standards set by the U.S. 
Environmental Protection Agency. That's about half a typical restaurant 
serving.''
    This type of environmental degradation is a serious concern, not 
only for residents of the Gulf region, but for all Americans. The 
precedent of the Toxic Release Inventory should be an example of the 
ability for Congress to legislate environmental and community 
responsibility without the negativity of legal and financial penalties.
    Moreover, with the many examples of environmental degradation 
associated with the coal and metals mining industry, the covered 
industries in the TRI should remain intact so that citizens of all 
States will be able to make sound decisions for their community, for 
their vicinity, and for their family.
                                 ______
                                 
    Mr. Tom Udall. Let me say thank you to the panel and 
specifically to Ms. Shultz. There are members of this committee 
that do want to hear your point of view, so do not feel 
unwelcome here.
    No, she said in her testimony, Chairman Gibbons. He thought 
I was referring to him, but he is a thin-skinned Republican. 
That is OK.
    [Laughter.]
    Mr. Gibbons. Well, that is better than being----
    Mr. Tom Udall. She said very dismissively----
    Mr. Gibbons [continuing]. A thick-headed Democrat.
    [Laughter.]
    Mr. Tom Udall. She said very dismissively in her testimony, 
she said she did not think her point of view was wanted, that 
we wanted to hear it, and I wanted to assure her that many of 
the members of the committee definitely want to hear her 
testimony.
    Ms. Shultz. I appreciate that, Congressman.
    Mr. Tom Udall. This question is directed to Ms. Shultz. Mr. 
O'Connor's testimony, he said--and I want to quote this: ``All 
nonaccidental releases reported under the TRI are specifically 
approved under other environmental laws.'' Do you believe that 
is true?
    Ms. Shultz. Well, there is actually an exception that I 
know of to that statement, which is that mining waste is 
exempted from control as a hazardous waste under RCRA. That was 
done through something called the Beville Amendment. But what 
it means is that, unlike other types of waste, mining waste 
cannot be regulated as a hazardous waste.
    Mr. Tom Udall. Now, what do you think of Ms. Abrams' 
assertion that ``compliance with the lowered reporting 
thresholds has imposed a large and significant burden on 
affected business''?
    Ms. Shultz. Well, I have to say that what we are talking 
about here is access to public information, and that should be 
paramount. So that is for starters.
    Second of all, the EPA's estimate of the burden to comply 
with TRI is something on the order of $7.5 million, and the 
total amount of toxic releases that are reported is on the 
order of 6 billion pounds. So overall, we are talking about 
something like a tenth of a cent--I am not doing the math in my 
head here, but something very, very small per amount just of 
the toxic chemical that is released. It is a very small 
percentage of overall scale.
    Mr. Tom Udall. Can you please respond to the assertion in 
Mr. O'Connor's testimony that the TRI mischaracterizes the 
significance of the data to the public?
    Ms. Shultz. Absolutely. The information that the mining 
operations report to the TRI are the chemicals that are in the 
material that they dig out of the ground and expose to the 
environment. This information is out there in its pure form. It 
is available to the public for the public to make 
determinations about the amount of chemicals. Has the water 
been polluted around a particular facility, for example? If so, 
is there a connection? Is there a potential for toxic chemicals 
to have entered into this waterway? What are my risks? What 
steps can I take?
    What the TRI does is provide information that has not been 
filtered through the mining industry, so I do not think that it 
mischaracterizes information at all. I think it is pure data.
    Mr. Tom Udall. And the position that you have taken, your 
members take, is that the public should be able to know what 
these toxic contaminants and pollutants are and be able to 
evaluate it for themselves, rather than have it filtered 
through a government agency or through a mining company or 
through any other filter, for that matter?
    Ms. Shultz. That is correct. I do not mean to say that in 
every case a mining facility or any other facility, for that 
matter, might not be forthcoming. But there have been cases 
such as up at Libby, which is a very unfortunate circumstance, 
and I do not mean to imply otherwise. But W.R. Grace has 
withheld information from the citizens of that town, and it was 
before TRI was around. If TRI was around--airborne asbestos is 
a reportable toxic chemical under the TRI--it is possible that 
the public might have been aware of the risks and dangers at an 
earlier time.
    Mr. Tom Udall. Now, when we talk about the public learning 
from the TRI about chemicals and being able to protect their 
health, have you seen specific circumstances--I think you 
mentioned one in your testimony, but are there other 
circumstances that have allowed communities and the public to 
protect themselves as a result of a listing on the TRI?
    Ms. Shultz. Yes, and I mentioned some of this in my written 
testimony as well. But there are specific cases where, based on 
information that has become available under the Toxics Release 
Inventory--and there is an example in my testimony about the 
Greens Creek Mine that is affecting the Admiralty Island 
National Monument. Before the TRI came out, there was no 
information about how toxic chemicals could be potentially 
affecting the National Monument. Based on the TRI information 
that came out, the group looked at this very, very popular 
site--it is a recreation site--and has decided to try to 
enforce a higher bond. This is the money that a mining company 
posts ahead of time in order to pay for clean-up to ensure that 
clean-up can actually address the full scope and scale of the 
mining operation.
    It is just one example of a situation where without the 
information, certainly the pollution still would have been 
there, but there might not have been any actions taken to help 
address the problem.
    Mr. Tom Udall. I think you also mentioned the circumstance 
in the Silver Bullet Mine up in----
    Ms. Shultz. Silver Valley?
    Mr. Tom Udall. Yes. And children there had brain-impairing 
levels of lead as a result of the smelter. Is that correct?
    Ms. Shultz. That is correct. And it is the reason that it 
became a Superfund site. Some of that contamination happened 
before the TRI Program was put into place. Certainly, you know, 
once TRI is put in place, that is exactly the type of 
information that becomes available to the public, and it is 
exactly where the public can determine for itself whether or 
not a site is safe to build their homes on or schools on.
    There have been recent studies that have shown--there is an 
NIH study, I think it was published in April, that says that 
there is no safe level of lead. So once you have any lead 
contamination whatsoever, if it is available, if it is in the 
environment, then it may not be--you may not want to build your 
home there or your school there.
    Mr. Tom Udall. Is it your sense that if we had had a TRI in 
place at an earlier point in time, we would have been able to 
prevent many of these Superfund sites, been able to prevent 
other health hazards that have flowed from them?
    Ms. Shultz. It is possible in the sense that if we had had 
the information ahead of time, steps could have been taken to 
reduce or eliminate pollution at the source, and I am talking 
about steps that the mining operation itself could have taken 
or that communities could have taken to enforce environmental 
laws that might not have been complied with, and perhaps not 
chosen to live near a site, which, unfortunately, is a lot of 
reason why sites do become Superfund sites, is because there 
is, you know, a human health exposure.
    Mr. Tom Udall. Thank you, and thank you to all the members 
of the panel. And I yield back to the Chairman.
    Mr. Gibbons. Well, thank you very much, and to Mr. Bye and 
Ms. Abrams, we apologize for not directing any questions at 
you, but I hope you feel not slighted by that. But your 
testimony was very valuable to us as well.
    Mr. Bye. Thank you.
    Mr. Gibbons. We will have an opportunity, of course, to 
send each of you written questions that may be a little more 
focused on the issues that we would like to hear from you, and 
if you could get those back to us within 10 days, the record 
will remain open for 10 days so that we can enter those 
questions as part of your testimony.
    With that, I want to thank our witnesses today. It has been 
a very enlightening, very helpful hearing on the Toxic Release 
Inventory, and we will call this hearing at an end, and thank 
you very much.
    [Whereupon, at 4:12 p.m., the Subcommittee was adjourned.]

