ASARCO TRI COMMENTS
Jurisdiction | United States |
(Apr 1997)
ASARCO TRI COMMENTS
Holland & Hart LLP
Salt Lake City, Utah
Table of Contents
I. INTRODUCTION
II. SUMMARY OF COMMENTS
III. EPA HAS LIMITED AUTHORITY TO ADD SIC CODES TO TRI
A. THE PLAIN MEANING OF THE STATUTE DEMONSTRATES THE AGENCY'S LACK OF AUTHORITY TO ADD SIC CODE 10 (METAL MINING) TO TRI REPORTING SIC CODES
B. THE LEGISLATIVE HISTORY OF THE STATUTE DOES NOT SUPPORT BROAD LISTING AUTHORITY FOR SIC CODES
C. ADDING SIC CODE 10 WOULD CONTORT THE MEANING OF "MANUFACTURING" AND "PROCESS"
D. THE HISTORY OF THE STATUTE DOES NOT SUPPORT ADDING THE METAL MINING SIC CODE
IV. ADDING METAL MINING IS INCONSISTENT WITH AND WOULD DISTORT THE PURPOSES OF TRI
A. ADDING METAL MINING IS INCONSISTENT WITH EPA'S STATED OBJECTIVES FOR TRI
B. THERE ARE OTHER SERIOUS UNRESOLVED QUESTIONS REGARDING THE APPLICATION OF TRI REPORTING REQUIREMENTS TO THE METAL MINING INDUSTRY
V. EPA'S CURRENT INTERPRETATION OF "RELEASE" WOULD DISTORT TRI REPORTING FOR METAL MINING
A. EPA'S CURRENT INTERPRETATION OF "RELEASE" MISINFORMS THE PUBLIC ABOUT POTENTIAL RISKS TO THE ENVIRONMENT
B. EPA'S CURRENT INTERPRETATION OF "RELEASE" IS INCONSISTENT WITH THE POLLUTION PREVENTION PURPOSES OF TRI
C. EXPANSION OF TRI REPORTING REQUIREMENTS TO METAL MINING WOULD EXACERBATE THE PROBLEMS ASSOCIATED WITH THE CURRENT INTERPRETATION OF "RELEASE"
D. A CHANGE IN EPA'S INTERPRETATION OF "RELEASE" IS CONSISTENT WITH EPA'S EPCRA AUTHORITY
VI. THE DECISION FACTORS USED BY EPA TO SELECT SIC CODES FOR TRI EXPANSION ARE FLAWED
A. THE DECISION FACTORS ARE TOO BROAD
B. THE DECISION FACTORS HAVE BEEN INAPPROPRIATELY AND/OR ARBITRARILY APPLIED
VII. EXTRACTION ACTIVITIES IN SIC 10 SHOULD NOT BE SUBJECT TO TRI.
A. EPA SHOULD EXCLUDE EXTRACTION IN SIC CODE 10 FROM TRI REPORTING REQUIREMENTS
B. IF EPA DECIDES TO ADD EXTRACTION FOR SIC 10 THEN EPA SHOULD CATEGORICALLY EXCLUDE WASTE ROCK AND OVERBURDEN FROM TRI REPORTING REQUIREMENTS
VIII EPA SHOULD ADDRESS ALL EXTRACTIVE INDUSTRIES SIMULTANEOUSLY
IX. EPA'S PROPOSAL FAILS TO EXAMINE ALTERNATIVE REPORTING APPROACHES FOR METAL MINING
X. THERE ARE PROCEDURAL CONCERNS RELATED TO EPA'S ACCELERATED SCHEDULE
XI. EPA'S REGULATORY IMPACT ANALYSIS DRASTICALLY UNDERESTIMATES THE COST OF THE TRI PROGRAM TO THE METAL MINING INDUSTRY
XII. CONCLUSIONS
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COMMENTS OF ASARCO INCORPORATED ON EPA'S PROPOSAL:
ADDITION OF FACILITIES IN CERTAIN INDUSTRY SECTORS; TOXIC CHEMICAL RELEASE REPORTING; COMMUNITY-RIGHT-TO-KNOW
61 FR 33588 (JUNE 27, 1996)
DOCKET CONTROL NUMBER: OPPTS-400104
EPA CONTACTS: TIM CRAWFORD AND BRIAN SYMMES
I. Introduction
ASARCO Incorporated (Asarco) is one of the world's leading producers of primary nonferrous metals and minerals, principally copper, lead, zinc, silver, and associated co-products such as molybdenum, gold, selenium, tellurium, bismuth, nickel sulfate, and antimony oxide. Asarco operates twelve mines, four smelters, and three refineries in the United States.
Asarco respectfully submits the following comments on EPA's proposed rule, entitled Addition of Facilities in Certain Industry Sectors; Toxic Chemical Release Reporting; Community Right-to-Know which appeared in the Federal Register on June 27, 1996 (61 FR 33588). Asarco is a member of the National Mining Association (NMA) and also wishes to endorse the comments submitted by NMA on this proposed rulemaking.
Asarco's smelting and refining facilities in Standard Industrial Code (SIC) code 33 are currently subject to TRI reporting. If the program is expanded to SIC code 10 (metal mining), Asarco's mines and mills would become subject to TRI reporting. Therefore, Asarco has a direct interest in this proposed rulemaking.
II. Summary of Comments
Asarco requests that EPA reconsider its proposal to expand the TRI program to metal mining (SIC code 10) by either: (1) removing SIC code 10 from further consideration as a part of expanding facility coverage under TRI; or (2) deferring action on SIC code 10, as it has on SIC code 13 (oil and gas extraction), until key policy, legal, and technical issues are resolved. Asarco makes this request based following considerations:
• EPA lacks the statutory authority to add SIC code 10;
• adding metal mining is inconsistent with and would distort the purposes of TRI;
• EPA's current interpretation of "release" will distort TRI reporting for metal mining; and
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• the decision factors used by EPA to select SIC code 10 are flawed.
Asarco understands and supports the intent of the Emergency Planning and Community Right-to-Know Act (EPCRA) to provide the public with meaningful information through TRI; however, EPA has a responsibility to ensure that the information the Agency conveys is meaningful and accurate so that the public can judge the attendant risks and accurately gauge the comparative risks. Unless the Agency lives up to this responsibility, the TRI program will not serve—and could actually harm—the public's right to know.
EPA's proposal to expand the TRI program to the mining sector is not a responsible exercise of the Agency's right-to-know authority. By expanding the TRI program to metal mining, EPA will undermine the congressional intent of TRI and the Agency's own stated objectives for the program while exacerbating misperceptions and misunderstandings present in the current reporting system. Measured by EPA's own yardstick, an expansion of TRI to metal mining will run counter to the objectives the Agency is trying to achieve through the TRI program.
From the outset, it is important to realize the magnitude of the potential impacts of adding metal mining to the TRI program. Take the example of a current operating mine that removes 75 million tons of waste rock and overburden each year. Using mean western state soil concentrations as an estimate for TRI reportable metals that could be found in waste rock and overburden (ATSDR Health Assessment Guidelines 1990), such a mine would report approximately 146 million pounds of "releases" every year—just from the waste rock and overburden. This number is nearly 2 1/2 times larger than the reported releases of the top-ranked TRI reporting facility in 1994. In fact, when compared to state TRI release totals, the 146-million-pound figure from a single mine would rank fourth among states. Assuming that other mining operations could have similar release numbers, it is clear that, if implemented, the proposed expansion of TRI to metal mining will permanently alter the face of the TRI program because mining companies would far overwhelm release totals reported by manufacturing facilities in western states where mining is a significant industry.
Before completing the TRI expansion rule for metal mining on its expedited schedule, EPA should carefully consider the potential for harm to the integrity and value of the TRI data base. Information, not mere data, should be the goal of this program, and reporting requirements that divert the public's attention are not consistent with the underlying purpose of section 313 of EPCRA. Put simply, if everything is reported, reporting means nothing. The currency, which in this case is information, will be seriously devalued.
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EPA Lacks Statutory Authority to Add SIC Code 10
A careful review of the plain language of EPCRA and its legislative history demonstrates that the statute does not support adding the SIC code for metal mining.
The plain meaning of the statute does not lead to or support TRI coverage of metal mining facilities. Obviously, this industry is outside the manufacturing SIC codes. Congress initially required TRI reporting only by facilities in SIC code 20-39 that "manufactured, processed, or otherwise used" listed TRI chemicals [section 313(b)(1)(A)]. This clearly did not include metal mining facilities in SIC code 10. Thus, the critical statutory authority question is whether the plain language of section 313(b)(1)(B) pertaining to the addition of SIC codes is broad enough to permit EPA to subject metal mining facilities to TRI reporting requirements. The answer is clearly, "no." That provision does not grant blanket authority to the Administrator to add new SIC codes. Rather, it states that new SIC codes may be added (or deleted) "only to the extent necessary to ensure that each Standard Industrial Code to which this section applies [i.e., SIC codes 20-39] is relevant to the purposes of this section" [emphasis added]. It is clearly not "necessary" to add SIC code 10 to the list of SIC codes subject to reporting "to ensure" that any other SIC code "to which this section applies is relevant to the purposes of this section."
Moreover, it is an independent condition of section 313(b)(1)(A) that reporting facilities must be engaged in "manufacture," "processing," or "otherwise using" section 313 listed chemicals. However, metal mining facilities covered by SIC code 10 are not engaged in such activities, within the plain language and meaning of the Act. Mining does not create or compound any section 313 chemicals.
Congress did not include the terms "extraction" and "beneficiation" as activities that would subject a facility to TRI reporting. Nor did Congress include these terms in the statutory definition of the terms "manufacture" or "process" in section 313(b)(1)(C). The non-inclusion of these terms in these definitions further evidences Congress's plain intent not to subject SIC code 10 facilities to TRI reporting requirements. Moreover, the plain fact that these facilities are engaged in activities fundamentally, unlike the facilities in SIC codes 20-39 and preceding "manufacture" also supports the view the Congress did not confer upon the Agency the authority to subject these facilities and operations to TRI reporting.
There is no indication in the pertinent legislative history that Congress intended to have industrial operations that are not manufacturing...
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