[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
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______
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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
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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
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C O N T E N T S
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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
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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.
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\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.
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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.
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\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.
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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
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\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.
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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.
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\5\ 2001 TRI Public Data Release, Executive Summary, page ES-5.
EPA, July 2003.
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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
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\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.
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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.
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\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.
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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
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\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.
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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.
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\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.
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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.
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\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.
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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
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\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.
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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
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\13\ No.97-2665, Order and Memorandum of Decision (D.CO, Jan. 16,
2001) and Order of Clarification (Mar.30, 2001)
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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
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\14\ No.99-958(TPJ) (DDC, April 2, 2003)
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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
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\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.
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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''.
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\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.
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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.
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\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).
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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
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\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.
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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
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\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.
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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.
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\1\ H.R. Conf. Rep. No. 962, 99th Cong., 2dSESS. (1986), ``Joint
explanatory statement of the Committee of Conference.''
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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
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\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.
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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
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\3\ ``Toxic Releases and Health,'' U.S. PIRG Education Fund,
January 2003.
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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
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\4\ Agency for Toxic Substances and Disease Registry, ``Public
Health Statement for Arsenic,'' September 2000.
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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
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\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.
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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
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\7\ ATSDR, ``Public Health Statement for Lead,'' August 1997.
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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
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\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.
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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.
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\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.
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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.
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\13\ EPA, Summary of 1998 Toxics Release Inventory Data, downloaded
from www.epa.gov/ tridata/tri98/data/1998datasumm.pdf, 15 October,
2002.
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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.
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\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.
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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
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\16\ Ward, Tom, Monsanto Corporation; Quad City Times (Iowa), June
8, 1990.
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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
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\17\ Ciba Geigy, Corporate Environmental Report, 1993.
\18\ Hinton, Randy, Vinings Industries; The Atlanta Constitution,
August 22, 1991.
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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.
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\19\ Boeing Company, ``People Reaching Solutions: Measures and
Results: Boeing Company Facts'' available at http://www.boeing.com/
aboutus/environment/eval--results.htm.
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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
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\20\ Working Group on Community Right-to-Know, ``Reports Using
Toxic Release Inventory Data,'' July 1, 1994.
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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
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\21\ TRI Program Division, EPA, ``How Are the Toxics Release
Inventory Data Used?'' May 2003, 8.
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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
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\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.
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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
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\24\ NMA Written Comments RE: Docket ID No. OEI-2003-0025,
September 2, 2003.
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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.
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\25\ EPA, ``What is the Toxic Release Inventory Program?''
available at http://www.epa.gov/tri/whatis.htm, June 2002.
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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.
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\8\ Letter from EPA Assistant Administrator Kim Nelson to the
Honorable Mike Pence, July 24, 2002.
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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.
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\9\ 68 FR 39074 July 1, 2003
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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
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\1\ http://www.epa.gov/epahome/headline--052302.htm
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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.
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\2\ http://www.epa.gov/triexplorer
\3\ http://www.epa.gov/triexplorer
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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.
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\4\ http://www.epa.gov/tri/lawsandregs/nma--lawsuit--fact--
sheet.htm
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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
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\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/
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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
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\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
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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
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\10\ http://www.epa.gov/fedrgstr/EPA-WATER/2002/December/Day-19/
w31980.htm, http://www.minesandcommunities.org/Action/press111.htm
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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.
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\11\ Hartman, Todd. ``Mine To Pay EPA $125,000.'' Rocky Mountain
News 13 September, 2000.
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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.
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\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.
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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
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\13\ September 20, 2000, Wednesday Copyright 2000 Albuquerque
Journal, Santa Fe, New Mexico
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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
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\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
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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
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\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.
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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
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\17\ Medical Toxicology, Ellenhorn & Barceloux, Elsevier Science
Publishing Co., New York City, N.Y., 1988
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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.
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\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
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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.
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\20\ http://www.atsdr.cdc.gov/tfacts2.html
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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
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\21\ http://www.epa.gov/waterscience/fishadvice/advice.html
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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.
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\22\ http://www.atsdr.cdc.gov/tfacts13.html
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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.
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\23\ http://www.atsdr.cdc.gov/testimony/testimony-1995-05-12.html
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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
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\24\ http://www.agweekly.com/commodities/sheephog/
index.asp?StoryID=183
\25\ http://www.atsdr.cdc.gov/tfacts92.html
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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
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\26\ http://www.nmenvirolaw.org/cases/molycorp.htm
\27\ http://www.amigosbravos.org/molycorpwatch/background.html
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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.
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\28\ http://www.epa.gov/triexplorer
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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.
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\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.
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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.
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\4\ Advocacy's April 2001 letter is available at http://
www.sba.gov/advo/laws/comments/epa01--0409.html.
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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.
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\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.
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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
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\6\ See Appendix C, attached to this statement, for relevant
excerpts from the Draft Issue Paper.
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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
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\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.
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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
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\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.
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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.''
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\6\ 5 C.F.R. Sec. 1320.6(h).
\7\ 5 CFR Sec. 1320.5(d)(1).
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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.
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\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.
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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.
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\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.
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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
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\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).
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[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
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\12\ November 1994 EPA Response to Comments Document, Establishment
of Alternate Threshold, at page 52.
\13\ Ibid., at page 54.
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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.
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\14\ NACEPT report, at page 22.
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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.
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\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.
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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.
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\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.
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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.
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\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.''
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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.]