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When publishing the new rule, the EPA lowered the minimum reporting threshold level for lead usage to 100 lbs/year from 25,000 lbs/year for manufacturers/processors and 10,000 lbs/year for other users. This dramatic change would force almost every company that uses lead borosilicate enamels to report and detail that usage to the EPA for broad publication.
TRI rules are extremely complicated, and the requirement to trace lead usage at such low levels would be problematic for every glass and ceramic decorator. Failure to comply in a timely and accurate manner could expose companies to serious lawsuits imposed by any interested party, with possible civil penalties as high as $25,000 per day.
The Reasoning Behind the ChangesThe EPA is basing the changes to its TRI Pb rule on the scientifically dubious assertion that metals including Pb should be treated as organics when considering their effects on the environment. Organics are ranked based on a PBT (persistent, bioaccumulative and toxic) scale, which has been beneficial as the agency seeks to rank dangers posed by these substances. The EPA is planning to submit questions on the applicability of PBT analysis of metals to its science advisors in the coming months—which is an extremely unusual procedural move, given that the agency has already issued the TRI Pb rule. Most observers believe that this irregularity is related to the Clinton administration’s politicized effort to push regulations into effect before leaving office on January 20, even if adequate scientific review was not completed.
The SGCD has been working with the industry coalition for more than a year to encourage the EPA to conduct a thorough scientific review before making TRI rule changes. In addition, several congressmen, the EPA’s own science advisors, other executive branch agencies, academic researchers, public commentators and 55 trade associations (including the SGCD) urged the EPA to conduct a peer review before making such a determination. In March, 73 associations submitted another formal letter to the new EPA Administrator, Christie Whitman, urging her to reconsider the rule. It is likely that the group will file a lawsuit if the rule is not suspended.
Government Agencies Oppose RuleThe United States Small Business Administration, the Office of Management & Budget, and the Department of Energy have all actively opposed this Pb TRI rule on science and small business grounds. In addition, Senator Christopher Bond (R-MO), Chairman of the Senate Small Business Committee, raised serious questions about the EPA’s actions in this case as they related to small businesses. Several SGCD members and others representing small business interests testified before a hastily assembled EPA panel in December 1999, and their recommendations were ignored by the EPA in its Pb TRI ruling.
Another highly unusual aspect of the new TRI lead rule establishes retroactive reporting obligations for 2001 with businesses forced to trace lead usage starting on January 1, 2001—even though the rule is not effective until April 17. In addition, the flawed PBT science is likely to be applied to almost every other metal, including zinc, copper and others that have already been designated in other draft PBT initiatives by the EPA or states taking their cues from the EPA.
Many scientific reasons exist why metals and inorganic metal compounds should not be assessed using the PBT approach, including concerns related to the classification of metals as persistent, bioaccumulative toxicants. Of primary consideration, the environmental fate and transport of metals cannot be adequately described using models for organic contaminants. For example, persistence as gauged by the PBT scale is used to measure the opportunity for exposure; however, metals such as Pb generally “persist” in a form that has limited environmental availability, which greatly reduces the opportunity for exposure. Persistence, therefore, does not have the same implications in terms of exposure for metals as for organic compounds. Based on this and many similar questions, SGCD and the coalition are simply asking the EPA to postpone the change in TRI reporting requirements for Pb until its SAB can apply sound science to the rule-making process.