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The U.S. Environmental Protection Agency (EPA) is in the final procedural stages of issuing rules that would force companies that use 10 pounds or more of lead or cadmium-bearing borosilicate enamels per year to track and report that usage for public review under the agency's Toxic Release Inventory (TRI) requirements. The EPA's TRI reporting changes are being made as part of its proposed classification of lead and cadmium as persistent, bioaccumulative and toxic (PBT) substances that are targeted for "voluntary" elimination by every branch of the agency.
A coalition, including the Society of Glass and Ceramic Decorators (SGCD), has been working to demonstrate the tremendous scientific flaws in the EPA's proposal, although it seems that the agency is blind to scientific reason in this election year. It appears, however, that scientific arguments and concerns related to the rules' impact on small businesses will cause the agency problems as it attempts to issue the new rules without inviting legislative intervention or an industry lawsuit.
New RequirementsIn July, the EPA submitted a final draft of its TRI proposal to the Office of Management and Budget and other agencies asking for comments within 90 days. The final rules could be published in October, which would require glass and ceramic decorators to comply with TRI requirements starting in 2001.
TRI tracking and reporting requirements are currently enforced when a company uses 25,000 pounds per year of a listed substance. The drastic lowering of this threshold to 10 pounds per year is hotly contested, as it would subject nearly every glass and ceramic decorator that uses colors containing heavy-metal borosilicates to track those substances under TRI rules and to post that information for public access.
This proposal could expose companies to lawsuits for failure to accurately report, with possible civil penalties as high as $25,000 per day. In addition, any person or organization could sue the owner or operator of a facility for failure to follow all reporting requirements. Such suits could be filed by ex-employees, neighbors, environmental groups and others.
Cost Estimates QuestionedIt is the EPA's contention that compliance with the proposed rule would cost no more than $7,416 the first year, and less after that. The EPA claims that this is less than one percent of total revenues of most small businesses that might be affected and would, therefore, have a negligible effect.
In December 1999, three SGCD members and other industry representatives testified against the EPA proposal during an EPA hearing. Arthur Roberts, president, Bay Specialties, Lively, Va., was joined by Tom Kearns, vice president, new business development, dmc2 Cerdec division, Washington, Pa., and Frank Moore, ceramic division manager, General Color & Chemical, Minerva, Ohio, to question the EPA's claim that the costs of compliance would be insignificant to small businesses. The speakers questioned the EPA's minimal-cost assertion by noting that tracking lead in the decorating process with any degree of accuracy would require a significant dedication of resources while providing no information of any use to the public. Roberts noted that decorators all want to protect the environment, but such drastic efforts to track small amounts of lead would represent a tremendous misallocation of resources.
During the testimony, speakers emphasized that lead borosilicate enamels are quite different from lead used in other industrial forms. Kearns noted that the chemical formulation of lead borosilicate enamels is such that the recording and counting process would be terribly difficult for small businesses. Moore noted that his company already dedicates significant resources to handle EPA regulatory matters, and that the EPA estimate of $7,461 for TRI's annual compliance costs is grossly understated.
Proposal Lacks Scientific MeritThe scientific reasoning behind the EPA's classification of lead, cadmium and other metals as PBTs is highly flawed-this has been demonstrated by scientists through testimony presented early in 2000. The PBT method is currently used to rate dangers posed by synthetic organic compounds. The international scientific community, however, has concluded that metals and their inorganic metal compounds should be assessed for potential hazard based on unique properties that differ significantly from synthetic organics.
This opinion was most recently confirmed by the Organization for Economic Cooperation & Development (OECD), which developed harmonized procedures for hazard classification. The EPA's own Science Advisory Board has noted that "classification of metals as persistent, bioaccumulative toxicants (PBT) is problematic, since their environmental fate and transport cannot be adequately described using models for organic contaminants." It appears that political reasoning drives the EPA forward in spite of these facts.
The SGCD will continually update its members as this issue develops.