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Comments Submitted by the Legal Environmental Assistance
Foundation, Inc., et.al. For the U.S. Environmental Protection
Agency's Public Meeting on the Chemical Use Inventory


The Legal Environmental Assistance Foundation, Inc. (LEAF) is a public interest law firm that serves disadvantaged people in the deep South whose health is threatened by pollution of the water, land and air. These comments are submitted on behalf of LEAF, Planet Well, Blacks on the Serious Side, League of Environmental Organizations, Friends of the Fenholloway and Help Our Polluted Environment.

It is the position of LEAF, et.al. that expansion of the Toxics Release Inventory (TRI) to include chemical use data is absolutely critical to this nation's achievement of pollution prevention as the primary goal of the environmental protection system. This position is based on the following points.

First, EPA must exercise leadership where the vast number of states have failed to do so. Opposition to pollution prevention in practice has reached the point that none of the states in the deep South are capable of securing necessary authority to assure its widespread use. In Alabama, a sponsor for a model Pollution Prevention bill has yet to be found, in spite of active solicitation by the public interest community. In Florida, pollution prevention bills have failed to pass in the 1992, 1993 and 1994 legislatures. Accordingly, information needed to increase understanding of the opportunities for pollution prevention is not available. Further, data necessary to evaluate progress toward measurable pollution prevention goals is equally unavailable. Accordingly, expansion of the TRI to include chemical use data will increase the availability of this information in these laggard states.

Second, information on chemical use is necessary to implement existing authority to secure pollution prevention in the state rulemaking process. Many state laws, as well as federal laws whose implementation is delegated to states, provide authority to implement pollution prevention. However, state rules implementing these laws are never promulgated because information on the applicability of pollution prevention to particular issues is not available. Chemical use information will identify the nature and amount of chemicals in use, which when evaluated with TRI release data, will clarify actual opportunities for using pollution prevention to manage toxic materials. An example which illustrates this opportunity is provided below.

The Florida legislature has declared that "the prevention ... of the pollution of the ...waters of this state are affected with a public interest"...403.021(5), Fla. Stat. (1993), and that "it is the public policy of the State of Florida that pollution prevention is necessary for all materials and waste management activities." 403.073(2), Fla. Stat. (1993). Further, the federal Clean Water Act demands nothing short of eliminating the discharge of pollutants into the nation's waters. Under the present antidegradation policy, "new and expanded discharges are allowed to degrade existing water quality" only if such degradation is "necessary or desirable under federal standards and under circumstances which are clearly in the public interest. 403.088 (2)(b), Fla. Stat. (1993); Fla. Admin. Code R. 17-302.300(7). 17-242 (1)(b). Because the prevention of pollution is affected with a public interest and declared to be the public policy for the state of Florida, LEAF submitted a Petition for Rulemaking to amend Florida's antidegration policy to incorporate pollution prevention measures (See Attachment A for Rule language). LEAF's amendment would allow the state to grant authorization to degrade a surface water only after a discharger has considered all economically and technically feasible pollution prevention measures. In spite of intense industry and agency opposition amid allegations that pollution prevention measures are unavailable to address point source discharges of pollutants into surface waters, the Florida Environmental Regulation Commission instructed the Department of Environmental Protection (DEP) staff to reconsider LEAF's proposal during workshops on the antidegradation rule. Accordingly, chemical use information is important for several reasons. It will help buttress LEAF's arguments that pollution prevention measures are indeed available to address toxic materials on site. Further, assuming that LEAF's amendment is indeed adopted by the state of Florida, chemical use information is needed for the DEP to evaluate the availability of pollution prevention measures and to counter statements by dischargers that pollution prevention measures are not available to limit the discharge of pollutants.

Third, chemical use information is necessary for citizens to properly evaluate the risks resulting from exposures to toxic materials which may be legally released (and reported) or illegally released (and unreported) from a facility. In particular, LEAF has prepared a model Environmental and Health Assessment Baseline Ordinance for communities to address the siting of hazardous waste disposal facilities. (See Attachment B for an article on this ordinance). This ordinance would require the performance of epidemiologic studies to determine the incidence of particular diseases in the community prior to the construction and operation of the disposal facility. It would then require the collection of human and environmental samples from a designated area which would be evaluated over time for exposure to contaminants released from the disposal facility. Information on the use of chemicals at other facilities in the community would clarify sources of similar or different contaminants from those released from the disposal facility and thereby increase understanding of the nature of risk posed by different facilities in a community. This ordinance is being considered in several counties in Florida and Georgia.

Fourth, chemical use data is essential for citizens living near facilities which may be polluting the water, land and air of the community. Citizens should have access to this information for several purposes. Initially, many of the citizens work at the facility and may be exposed in the process of employment. Further, local citizens need to understand the complete picture for sources of exposure. This exposure may result from legalized releases of pollutants; it may result from accidents and spills that may or may not be reported; and, it may result from toxic materials which are used and released as fugitive emissions. In addition, because of existing contamination at a particular facility, citizens may be in a posture to negotiate an agreement with a facility as part of an enforcement or other proceeding. The following examples illustrate this point.

QO Chemical in Belle Glades, Florida has contaminated underground sources of drinking water through its underground injection operation. Rather that remediate the ground water, a consent order from the DEP allowed the company to seek exemption of the aquifer from protection afforded by the Safe Drinking Water Act. Affected citizens are opposing that aquifer exemption. The company has stated that it will undertake all measures to satisfy community concerns about the facility as a whole if the citizens will not force the facility to close down. Thus, due to the aquifer exemption request, citizens now have great leverage with the company. Their ability to secure significant changes is based on the quality and amount of information they have on the operation itself. Thus, information on chemical use can be used directly in negotiations to improve community and worker conditions and to enhance the economic viability of the company.

Yvonne Brazier, an African American, lives adjacent to an industrial complex in Mobile, Alabama. She, along with the rest of her low income neighbors, have had relatives die from cancer, lung disease and other ailments. She would like to regain control over her environmental destiny and is willing to organize her community to do so.

To do this, she needs information. She needs information on legalized releases and she needs information on chemical uses in the community. The information on chemical uses is needed because many of the people in the community work at the facilities and because many of the people are exposed to contaminants which are not subject to the existing TRI. Without this information, she will not be able to effectively communicate with the facilities in her neighborhood and develop a plan which will protect her health and that of her neighbors.

Altogether, for the foregoing reasons, LEAF strongly urges the EPA to amend its TRI to include chemical use data. Failure by EPA to do so will perpetuate the degradation that is destroying the health and heritage of communities across the country.

Source: RTK Net, Washington DC

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