Executive Overview - Regulatory Review: The TRI Pb Rule

As reported in the national media, the Bush administration announced on April 17 that it would not intervene to halt the Toxic Release Inventory (TRI) lead rule changes that were issued by the Environmental Protection Agency (EPA) in the final days of the Clinton administration. Many media outlets have reported that the decision is a political move that the administration felt was necessary to rehabilitate itself for the hits it has taken on other recent environmental decisions. This appears to be an accurate analysis. Many have criticized the administration for its handling of the earlier matters related to arsenic, CO₂ and other rules, but regardless of fault, the timing could not have been worse for those who had hoped for a reasoned scientific decision on lead.

(For more information on reporting requirements, see Legislative Issues: EPA Lead Reporting,” CI June 2001.)

Rule Challenged in Court

An industry coalition, which includes the Society of Glass and Ceramic Decorators (SGCD), filed suit in April against the EPA alleging, among other things, that the agency failed to follow proper rulemaking procedures when issuing the Pb TRI rule. The suit was filed in federal court after concerted efforts to encourage the EPA to unilaterally suspend the rule failed in the face of significant pressure by environmentalists and others to maintain the rule without changes. It is hoped that the EPA will now settle the suit by suspending the rule until its Science Advisory Board (SAB) can review the scientific rationale behind the ruling, and until it can correct procedural flaws related to its failure to seek adequate input from small businesses as required by law.

Also in April, the National Federation of Independent Business (NFIB) announced that it will file a legal challenge to the lead rule stressing small business issues. The NFIB case will be consolidated with the SGCD-supported industry case, and it will be heard by Judge Paul Friedman, who is considered a balanced and fair jurist. As in any trial, however, the outcome is uncertain.

Earlier Efforts

The SGCD has been working closely with the industry coalition for more than a year in an effort to prevent this rule from taking effect. In addition to joining overall industry efforts to suspend the rule, the SGCD contacted EPA Administrator Christine Whitman directly to address problems that small glass and ceramic decorators will face when confronted with TRI requirements for the first time. SGCD staff also visited congressional offices to deliver member appeals to specific congressmen.

These and other actions were taken to minimize the effects of pressure on the EPA from environmentalists who—among other things—placed full-page ads in major newspapers stating: “If You Liked Arsenic You’ll Love Lead.” The ads were referring to the EPA’s recent high-profile withdrawal of another flawed “midnight” regulation that drastically lowered permissible levels of arsenic in water.

During Whitman’s press conference announcing the decision to allow the lead rule to take effect, no mention was made of the scientific controversy over the PBT (persistent, bioaccumulative, toxic) status of metals, which is critical to the application of the TRI statute. When issuing the rule in January, the EPA noted that it plans to submit questions on the applicability of PBT analysis of heavy metals to the SAB after the TRI rule is issued. The TRI rule is based on the scientifically dubious assertion that heavy metals, including Pb, should be treated as organics when considering their effects on the environment.

Also during her press conference, however, Whitman steadfastly refused to rule out a settlement of the industry lawsuit, and she noted that further scientific review could change the administration’s position. The SGCD and the coalition will continue to press for an early and thorough SAB review and an expeditious EPA reconsideration of its rule in light of the SAB’s findings.

Lead Rule Compliance Meeting

As it stands now, however, TRI reports under the new regulations will be due July 1, 2002, and will be required for all lead usage retroactively to January 1, 2001. To assist glass and ceramic decorators, the SGCD has scheduled an EPA Lead Rule Compliance Seminar for June 22 at the Embassy Suites Hotel at BWI Airport in Baltimore, Md.

The seminar will include an update on the lawsuits’ progress as well as a presentation on TRI enforcement by EPA representative Bill Reilly. In addition, John Kinkela, Lenox; Tim Counihan, dmc²; Frank Moore, General Color; and others will analyze details of TRI compliance specifically for glass and ceramic decorators. They will discuss how to account for varying lead content levels when using different colors and offer advice on developing TRI recording systems to track lead usage.

For a flyer with complete seminar details, call (301) 951-3933, e-mail sgcd@sgcd.org or visit http://www.sgcd.org.