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Public availability of environmental data is a crucial tool in the protection of public health and the environment. Programs such the US EPA’s Toxic Release Inventory (TRI) or public access to facility startup, shutdown, and malfunction (SSM) plans under the Clean Air Act are credited with increasing public participation in and oversight of environmental matters, and in the case of TRI, significantly decreasing hazardous substance releases.

These programs have been criticized, however, for paperwork requirements and failure to safeguard adequately confidential business information and trade secrets. The war on terror added a new dimension to the debate: how to balance the public’s right to know with the need to maintain chemical facility security.

TRI Burden Reduction Rulemaking. On Oct. 4, 2005, EPA proposed to reduce the burden on facilities that annually report persistent bioaccumulative toxic (PBT) chemicals under section 313 of the Emergency Planning and Community Right-to-Know Act.1 The proposal would allow facilities to use the less detailed TRI reporting Form A, provided that in a reporting year they 1) release no PBT chemicals to the environment; 2) do not “manufacture, process or otherwise use” more than a million pounds of the chemical; and 3) recycle, treat, or burn for energy recovery no more than 500 lbs of the chemical. EPA proposed similar relief for non-PBT chemicals, raising the amount of such chemical releases facilities can report using Form A from 500 to 5,000 lbs.

Environmentalists accuse EPA of dismantling the TRI program. The agency, however, is not proposing blanket exclusions from TRI reporting. In the case of PBT chemicals, only those facilities with zero environmental releases would be able to use Form A. Moreover, TRI information can be supplemented easily with facility-specific and often more-detailed information from other EPA databases supporting specific compliance programs under the Clean Air, Clean Water, and Resource Conservation and Recovery Acts.

SSM Plan Availability. Following a Sierra Club challenge, EPA agreed with industry in 2003 that facilities should not submit their SSM plans to permitting authorities but rather must make them available for inspection upon request by the appropriate permitting agency.2 EPA clarified that only permitting authorities will obtain a copy of an SSM plan for the public if the request is “specific and reasonable.” The National Resources Defense Council (NRDC) petitioned for reconsideration, saying states could block citizen access to SSM plans by declaring the request not “specific and reasonable."3

After reviewing NRDC’s petition for reconsideration, EPA concluded the Clean Air Act does not require EPA or a permitting authority to obtain SSM plans at the request of the public. And, the Act does not empower EPA with authority to impose such a requirement on permitting authorities. The Agency did note that the public is entitled to have access to an SSM plan if EPA or a permitting authority takes action to obtain such a plan under section 114(a) of the Act. But mandating such access is unnecessary for public monitoring and oversight of compliance with air emission limitations. In fact, the agency expressed concerns that requiring public access to SSM plans could make them less effective, since facilities would be less likely to include proprietary details about their operations. Industry overwhelmingly supported EPA’s proposal to deny NRDC’s petition, citing not only burden and confidentiality concerns but also the need to protect SSM contingency planning for security reasons.

Given the heightened concern over SSM events since hurricanes Rita and Katrina, however, it seems highly unlikely EPA will finalize these regulations as proposed.

Toxics Release Inventory Burden Reduction Proposed Rule, 70 Fed. Reg. 57,822.
2National Emission Standards for Hazardous Air Pollutants for Source Categories: General Provisions; and Requirements for Control Technology Determinations for Major Sources in Accordance With Clean Air Act Sections, Sections 112(g) and 112(j), 68 Fed. Reg. 32,586, 32,592 (May 30, 2003).
368 Fed. Reg. 32,591.

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; This email address is being protected from spambots. You need JavaScript enabled to view it.;

To read more of Sheila A. Millar’s Legal Briefs columns, visit our Legal Briefs Archives.

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