Critics call EPA's new rule a loophole for big business

A new reporting rule, aimed to ease the burden on small firms, may instead help Ashland and other giant companies.

In a bid to trim the regulatory burden on small businesses, the Environmental Protection Agency is set to relax the rules on what toxic chemicals they have to report.

But in a twist, the EPA's newly revised Toxics Release Inventory rule will also make it possible for hundreds of large corporations to avoid reporting specific amounts of toxic chemicals they release into the air, land, or water, environmentalists warn.

The rule change has cheered small-business groups, generated widespread public opposition, and caught the eye of some Democratic congressmen, who will take control of Congress next month. It takes effect immediately.

The change affects companies that release relatively small amounts of toxic materials but still have to report them to the federal Toxics Release Inventory.

Under current TRI rules, companies have to report emissions of any toxic chemical that exceed 500 pounds in a year. Under the new rules, facilities could fill out a simpler form that omits reporting the amount of toxic chemicals if they created less than 5,000 pounds of it in a year and released no more than 2,000 pounds of it into the environment.

But the move makes it harder for neighborhoods or environmentalists to find out how much of a toxic chemical, such as toluene, a nearby factory is emitting. Researchers have linked toluene, used to make dyes and as a solvent, to various health problems. Similar streamlined reporting could be applied to another class of even more dangerous toxins if the waste was less than 500 pounds, entirely recycled, and not released at all.

Such limits spur business to reduce their toxic waste, federal officials contend. "EPA is delivering a cleaner, healthier nation by encouraging businesses to make environmental improvements now and in the future," Marcus Peacock, deputy EPA administrator said at a press conference to announce the new rule Monday.

EPA officials say the new TRI would save $6 million annually in unnecessary paperwork. Business groups back the measure.

"This move by the EPA will primarily assist small businesses that already release little or nothing into the environment at all from being overburdened with regulatory filings," says Andrew Langer, manager of regulatory policy for the National Federation of Independent Business, a Washington trade group.

But critics say the move seems to be an effort to weaken a reporting law that has empowered community activists with details about some 650 industrial chemicals that the TRI tracks. While TRI does not require emission controls, activists have used data to embarrass companies into cutting emissions.

"Americans who live near industrial facilities want to know what's going into their air and water," Rep. Frank Pallone Jr. (D) of New Jersey said during a recent teleconference with reporters.

The EPA move, which Mr. Pallone called a "terrible decision," could herald a wider battle with a new Democrat-controlled Congress with more intense oversight hearings examining EPA rulemaking in the new year, observers say. Legislation Pallone brought last year to cut funding for the TRI revision may be resurrected to block its implementation.

Of 24,000 facilities currently reporting TRI data, about one-third could be eligible to fill out a short form that simply lists the chemical, they said.

But one largely hidden element of the rule change is that big companies are among the largest beneficiaries, says Tom Natan, of the National Environmental Trust, a Washington environmental group.

"The idea that this change is meant to benefit small independent business is just not true," he says. "When they first issued the proposal last year, EPA was saying it's mom and pop businesses this will help, but it turns out it's really General Motors, Sunoco, and companies like that."

While thousands of facilities will see major reductions in their paperwork, Dr. Natan is most concerned about the 3,600 facilities, about 15 percent of the total, that his analysis shows will no longer have to report any emissions details at all. Many such facilities, which emit thousands of pounds of toxins, are operated by some of the nation's largest companies.

An Ashland Distribution Co. facility, located in Birmingham, Ala., a division of the Fortune 500 giant Ashland Inc., released seven toxic chemicals totaling 4,405 pounds in 2004, according to the most recent TRI data. But because each chemical is below the new 2,000-pound threshold, the facility may no longer have to report any data on amounts and types of releases, Natan says. It also leaves room for emissions to rise without data being made public, he adds.

Similarly, one of Chevron's Honolulu marine terminals emitted 1,328 pounds of seven chemicals in 2004, including 580 pounds of the n-hexane, a potent toxin. But under the new TRI, that facility won't have to report such details in the future.

Both companies are taking a wait-and-see attitude.

"We're going to look at this change, but in the meantime continue to remain compliant with all federal regulations," says Ken Gordon, an Ashland spokesman. "It may help us a little bit to fill out the shorter form – save us some time – and that's what EPA had in mind. It wants companies to save time and still be protective of public health. The public is still getting their right to know what chemicals are being used."

"Right now we file the long form and it is our intent to continue that practice until the new TRI proposals are fully vetted," says Albert Chee, a Chevron spokesman. "If there's some reason to change our reporting practices, then changes will be made. But right now, we'll continue to follow our historical practice."

EPA found broad public discontent after it proposed its rule. More than 99 percent of the roughly 120,000 respondents during the public comment period opposed it, according to OMB Watch, a budget watchdog in Washington, D.C.

"It's outrageous that you want to make it easier for businesses to avoid public scrutiny of their releases," Carolyn Boatsman of Mercer Island, Wash., wrote the EPA in 2005. "It has been unequivocally documented that having to publish releases has shamed businesses into drastically reducing their output. We need that motivation."

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