Civ. Action No. 00-0173
Judge Royce C. Lamberth

JIM J. TOZZI, President,
Multinational Business Services, Inc., et al.,







In further opposition to Defendants' motion to dismiss Plaintiffs' first cause of action, Plaintiffs hereby submit the attached public comments, which were filed separately with Defendant EPA today. The comments pertain to an EPA guidance document issued June 15, 2000, and they explain why publication of that guidance does not, as a legal matter, satisfy EPA's obligations under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

The comments also explain why the guidance does not fulfill EPA's commitment to supplement its incomplete information collection request by, "providing additional guidance on the level of precision at which facilities should report their releases and other waste management quantities of PBT chemicals." 64 Fed. Reg at 58672 (Oct. 29, 1999).

Respectfully submitted,

Charles J. Fromm
(D.C. Bar No. 420021)
11 Dupont Circle
Suite 700
Washington, D.C. 20036
(202) 797-7124 (phone)
(202) 939-6969 (facsimile)

Attorneys for Plaintiffs

Dated: July 17, 2000


W. Caffey Norman
D.C. Bar No. 269639
2550 M Street, N.W., 5th Fl.
Washington, D.C. 20037
ph: (202) 457-5270
fax: (202) 457-6315

July 17, 2000


OPPT Document Control Office (DCO)
U.S. Environmental Protection Agency
East Tower Room G-099
Waterside Mall
401 M Street, S.W.
Washington, D.C. 20460

Re: Docket No. OEI-100000;
Comments on EPA Guidance Document for Dioxin and Dioxin-like
Compounds and Other Persistent Bioaccumulative Toxic Chemicals;
Community Right to Know Toxic Chemical Release Reporting

Dear Sir or Madam:

I make these comments pertaining to the above EPA Guidance document ("Guidance") in response to the request for public comments published in the Federal Register on June 15, 2000 (65 Fed. Reg. 37548).

Basis of Our Interest

I am the lead counsel in pending litigation against EPA relating to the Persistent Bioaccumulative Toxic (PBT) Chemicals Rule, 64 Fed. Reg. 58,666 (Oct. 29, 1999) ("Final Rule"). That lawsuit, Tozzi v. EPA (D.D.C. Civ. No. 00-0173), alleges, inter alia, that, in connection with the Final Rule, EPA violated key provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520 ("PRA"). Plaintiffs in the suit include wood treaters and entities that formulate wood treatment chemicals and who would become Toxics Release Inventory ("TRI") respondents under the Final Rule.

The lawsuit states that, by failing to provide detailed information regarding the proposed calculation of releases of dioxin and dioxin-like compounds in the information collection request ("ICR") that EPA submitted to the Office of Management and Budget, EPA deprived plaintiffs and the public of their procedural rights under the PRA.

EPA's Continuing Violation of Paperwork Reduction Act

The thrust of our comments is twofold. First, EPA's publication of the new "Guidance" document does not satisfy the requirements of the PRA or cure EPA's continuing violation of that statute. The Final Rule set a reporting threshold of 0.1 gram for reporting releases of dioxin and dioxin-like compounds, but it failed to explain how this number would be calculated. In seeking PRA regulatory approval for the Final Rule, EPA withheld crucial detail explaining how these minuscule volumes were to be determined and how the agency would assess releases against respondents such as the plaintiffs in our case.

New and/or substantially modified federal agency "collections of information," such as the change in the TRI reporting requirements adopted in the Final Rule, must be approved by OMB pursuant to the Paperwork Reduction Act. Under the PRA, an agency's Federal Register notice must afford members of the public an adequate opportunity to address the need for, and "practical utility" of, the proposed information collection. See 5 C.F.R. 1320.8(d)(1)(i) (incorporated by reference into 1320.11(a)). Both the Federal Register notice and the "Supporting Statement" in the clearance package submitted to OMB also must contain an accurate estimate of the total reporting and recordkeeping burden that will result from implementation of the collection of information so that the prospective respondents can comment on the accuracy and appropriateness of the proposed collection in light of the "practical utility" test. See id. 1320.8(d)(1)(ii), (iv).

Instead of affording an opportunity for public comment and OMB assessment of the agency's release calculation methodology, the Final Rule indicated that EPA would be "providing additional guidance on the level of precision at which facilities should report their releases and other waste management quantities of PBT chemicals." (64 Fed. Reg at 58672). This promise of future clarification, however, flatly ignores the agency's legal duties under the PRA.

EPA's voluntary and tardy solicitation of public comment on emissions calculation methodology contained in the Guidance document can in no way be construed as agency compliance with the terms of the Paperwork Reduction Act. The PRA requires that a separate agency, OMB, review and approve the information request. Nowhere in the Guidance document has EPA indicated that it intends to resubmit the ICR for reapproval by OMB in light of the new emissions calculation methodology. Simply permitting public comment on a separate agency guidance cannot substitute for EPA's compliance with its statutory obligations. Thus, regardless of any support EPA may garner for its newly revealed "Emissions Factors" or for other the aspects of the Guidance, the agency's statutory violation persists.

Inapplicability of Guidance to Wood Treaters and Formulators

Second, even putting aside the serious legal insufficiencies discussed above, the Guidance document does not provide any meaningful assistance to wood treaters and wood preservative formulator businesses, such as the plaintiffs in the Tozzi v. EPA lawsuit.

Under the new Guidance, EPA has adopted a 3-tier "hierarchical" scheme pursuant to which all entities that "manufacture, process or otherwise use . . . certain dioxin-like compounds" are to report releases as required under the Final Rule. Guidance 2.1. The Guidance purports to apply, inter alia, to all industries within Standard Industrial Classification (SIC) groups 20-39, including lumber and wood products in SIC group 24. Guidance 1.2. Wood preservers are classified in SIC group 2491.

None of the three "approaches" outlined at section 2.1 of the Guidance, however, makes any sense when applied to wood treaters and/or formulators of wood preserving products. Approach 1 -- "Use Actual Facility-Specific Release Data" (Guidance 2.1.1) -- does not apply because these entities have not previously been required to gather data on their releases of dioxins or dioxin-like compounds, nor are they required to perform such monitoring under the Final Rule.

Approach 2 -- "Use Your Own Emissions Factors" (Guidance 2.1.2) -- does not apply because there are no "close analogy" facilities with "engineering test reports" upon which these entities could fairly rely to approximate their own releases with the required certainty. Even if some similar facilities might exist, the cost of Approach 2, i.e., of seeking out such facilities, performing the testing required under the Guidance, and determining whether the facility is sufficiently similar for TRI dioxin reporting purposes, would be immense, particularly for our small businesses clients.1

Approach 3 -- "Use EPA Default Emission Factors" (Guidance 2.1.3) -- does not apply because none of the six Default Emission Factors covers wood treaters or wood preservative formulators. Of the six categories, the only one that even references "wood" is "Industrial Wood Combustion" (Guidance 4.1). This category, however, does not apply to wood treater and wood preservative formulator entities, which are engaged in distinct business activities unrelated to wood combustion.

Finally, there is no catch-all or "Other Industries" category of Emission Factors, either under Approach 3 or in the Guidance as a whole, into which our clients might fall.


The Guidance document is thus both legally insufficient to cure EPA's violation of the Paperwork Reduction Act and factually inadequate to apprise our clients of how EPA intends them to calculate releases of dioxin and dioxin-like compounds under the Final Rule. For these reasons, we believe the Guidance should be withdrawn, revised and incorporated into the Final Rule, and that the entire Final Rule -- including the intended release calculation methodology -- should then resubmitted for public comment and OMB approval in accordance with proper regulatory procedures.


Charles J. Fromm

1 If EPA intends that Approach 2 somehow should apply to wood treaters and wood preservative formulators, then the extraordinary burden of identifying an unknown number of possible "analogy" facilities, of obtaining permission from the owners of those facilities to inspect their records, and of analyzing and documenting those facilities' engineering reports is precisely the kind of burden issue that respondents would have raised in connection with the proposed information collection request, had they not been denied their right under the Paperwork Reduction Act to do so.