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RIGHT TO KNOW Fact Sheet #4
How To Identify Right To Know Violators
And Get The REAL Toxics Story

Source: Environmental Action Foundation
1525 New Hampshire Ave., NW
Washington, DC 20036

With passage of the Right to Know Act (RTK), for the first time, companies were required to report their toxics usage and chemical releases into the environment. Citizens are using their right to know about toxic releases in their neighborhoods to push for toxics use reduction. Firefighters and emergency planners are using right to know information to develop comprehensive plans in the case that they have to respond to an accident at a facility using toxic chemicals.

Even though the law has been on the books since 1986, thousands of companies have failed to report their toxics usage and chemical releases into the environment. The Environmental Protection Agency (EPA) estimated that one third of all the companies that are required to report their toxic releases into the environment have failed to do so. Failure to comply with right to know hinders government and citizen efforts to promote toxics use reduction and jeopardizes the safety of firefighters who may need to respond to an emergency at a plant.

EPA's enforcement efforts have been grossly inadequate and thousands of facilities throughout the country are keeping their toxics usage and releases a secret. In addition, many toxic releases continue to go unreported due to exemptions and loopholes in the law. Because of right to know's loopholes, exemptions and enforcement difficulties, citizens may need to conduct research under other toxics laws to "get the real toxics story."

This fact sheet will describe research methods you can use to document a facility's toxic releases into the environment through examining the Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act, and the Right to Know Act. It will also describe how to identify right to know violators and how to supplement right to know data with toxic release information from other toxics laws. This fact sheet is the fourth in a series of five fact sheets pertaining to understanding and using the Right to Know law and is designed for people who are already familiar with and using the Right to Know law.

What is a Right to Know Violation?

Although there are many sections of Right to Know, this fact sheet will focus on violations of Section 313. The Right to Know Act requires certain companies to submit Material Safety Data Sheets (Section 311) and Tier I or Tier II Forms (Section 312) if they store more than 10,000 pounds of a specific OSHA listed chemical on-site. (Lower thresholds apply to chemicals designated as Extremely Hazardous.) For manufacturing facilities falling within SIC codes 20-39, Form R's (Toxic Release Inventory Forms - Section 313) that describe toxic releases to the air, land and water must be submitted if the company has 10 or more employees, uses more than 10,000 pounds of a chemical included on EPA's Section 313 list, or manufactures or processes 25,000 pounds of a Section 313 listed chemical. Failure to submit MSDS's, Tier I/II Forms and Form R's are serious violations of the Right to Know Act. A citizen may sue a facility that has violated Right to Know's reporting requirements by failing to submit MSDS's, Tier I/II Forms or Form R's. (Violations of Sections 311 and 312 are more difficult to uncover since few documents specify exact chemical quantities stored on-site. If a citizen has identified a facility that has failed to report under Section 313, the facility may have also violated Sections 311 and 312.)

Searching for Right to Know Violators

Identifying Right to Know (RTK) violators is like trying to put together a jigsaw puzzle with several pieces missing. Your basic task is to try to find a "smoking gun" that shows a non-reporting company to be "otherwise using" more than 10,000 pounds of a Section 313 chemical or "manufacturing or processing" more than 25,000 pounds of a Section 313 chemical.

When trying to identify facilities that have violated the RTK law, it is important to be well organized and thorough. Several databases should be reviewed to determine whether a company is violating the RTK law. Below are several steps that are designed to help you organize your research so you can develop an effective and efficient system for identifying violators.

1. Defining Your Research AreaIn order to organize your research, it is important to define the regional area that you are interested in researching. Are you interested in researching facilities located in your neighborhood, county or state? Once you have defined your research area, you should obtain or consult a manufacturers directory for your state. These directories can be found in business libraries and are usually available from the Chamber of Commerce. Most manufacturers directories contain useful information such as facility address, contact number, number of employees, and Standard Industrial Classification (SIC) code. Most directories sort facilities by alphabetical order, SIC code, and city or county. Cross off all facilities that have fewer than 10 employees as they are exempt from Section 313 reporting requirements. Most manufacturing directories only list facilities with SIC codes 20 - 39. If your list of manufacturers contains facilities with SIC codes below 20 or above 39, they should be crossed off the list as they are exempt from Section 313. SIC codes are actually four digit codes so you are actually interested in facilities falling within 2000 - 3900. (See manufacturers directory sample on page eight.)

2. Obtain the document: Common Synonyms For Chemicals Listed Under Section 313 of the Emergency Planning and Community Right to Know Act.

This document is published by the EPA and can be obtained by calling the Right to Know Hotline at 1-800-535-0202. The document lists Section 313 chemicals that facilities are required to report and includes the common synonyms and Chemical Abstract Service number (CAS#). CAS#Os are used to identify chemicals and should be used when conducting research to ascertain whether facilities are using chemicals subject to Section 313's reporting requirements.

3. Obtain lists of facilities that reported under Sections 311, 312 and 313.

Contact your State Emergency Response Commission (SERC) and ask them to print out a list of facilities that submitted MSDS's, Tier I/II Forms, and Form R's. Only manufacturers are required to submit FormER's while facilities that store toxic substances above the threshold quantities (e.g., gas stations, storage terminals, distributors) must submit MSDS's and Tier I/II Forms. When requesting lists of facilities submitting MSDS's and TierI/II Forms, ask that they sort the lists by SIC code so it contains only manufacturing facilities with SIC codes 20-39. This will enable you to easily cross-reference the lists with the manufacturers directory and list of facilities that submitted FormER's. When requesting lists, it is important to make sure all of the lists are in alphabetical order and include the addresses of the reporting facilities. Contact the EPA to obtain their list of Section 313 reporters as companies will often submit Form R's to the EPA but not to SERC's. Both the SERC Section 313 list and EPA's Section 313 list should be consulted to make sure that a facility has failed to submit Form R's to EPA and to the SERC. When requesting lists from the SERC or EPA, make sure you specify the reporting years you are interested in reviewing. This will ensure that your research is consistent in that you will be reviewing lists for the same year.

4. Obtain lists for water discharges, air emitters, and hazardous waste generators.

It is likely that facilities using toxic substances in their manufacturing process release some chemicals into the environment. Below is a brief explanation of the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act (RCRA) as well as advice on how to obtain lists of water dischargers, air emitters and hazardous waste generators. In the section entitled "Reviewing State Agency Files," research methods to identify Right to Know violators and supplement Right to Know data will be described as well as strategies for working with bureaucrats.

The Clean Water Act

Discharges to water are regulated by the Clean Water Act which requires facilities to obtain a permit that regulates water discharges into surface waters and sewage treatment plants. Guidelines for permits are issued through the National Pollution Discharge Elimination System (NPDES). If a facility does not have a direct discharge to a waterway, they may have a "pretreatment permit" allowing them to discharge pollutants into a sewage treatment plant.

Clean Water Act Highlights

1. NPDES permits authorize the permittee to discharge specified pollutants in certain quantities into a particular waterway or sewage treatment plant. Discharges above the permit limits are violations of the Clean Water Act that citizens can enforce using the citizen suit provision described below.

2. Discharge Monitoring Reports require permittees to test their pollution discharge and report these results to the state agency responsible for water discharges. These reports are usually submitted on a monthly basis and citizens can review them to determine how much pollution is actually being discharged. Citizens can determine whether a facility is violating its permit limits by comparing the reported amounts discharged to the pollution limits in their permits.

3. Citizens have the right to comment on draft NPDES permits. When a draft permit goes out for public comment, a legal notice must be placed in a local newspaper and citizens have at least 30 days to comment on a proposed permit.

4. Citizens can seek fines and injunctive relief against companies that violate their permit limits. Section 505 of the Clean Water Act authorizes any person to commence a civil action on his/her own behalf "against any person...who is alleged to be in violation of (A) a pollution standard or limitation...or (B) an order issued by the (EPA) Administrator or a State with respect to such a standard of limitation.

Clean Water Act: What To Ask For

Once you have identified the agency in charge of permitting water discharges in your state (usually called Water Pollution Control, Water Permits, Division of Water Quality), you should request a list of NPDES and pretreatment permit holders in the region that you are interested in reviewing. Request that the list be sorted alphabetically and that it include the facilities' addresses and SIC codes.

Clean Air Act Releases to the air are regulated by the federal Clean Air Act. This Act is very complicated and not very effective at protecting the public's health. Amendments to the federal Clean Air Act have improved the law but will not necessarily protect the public from harmful air pollutants.

Clean Air Highlights

1. Lists areas, known as non-attainment areas, that fail to meet EPA's basic air quality standards.

2. The new Clean Air Act will eventually require air toxic sources to obtain an operating permit similar to a NPDES permit.

3. Citizens can sue facilities that violate a permit requirement.

Clean Air Act: What To Ask For

The new federal Clean Air Act, signed into law in 1990, will not be fully implemented for approximately 10 years. Some states have comprehensive air toxics laws while other states have essentially no information on air toxics. Thus, the types and quality of information available may vary significantly from state to state.

After you have identified the agency in charge of regulating air emissions in your state (usually called Air Quality Control, Air Pollution Control or Air Management), contact someone in the agency who can explain what types of information are available to you. For example, Virginia has files on general emission sources (fuel burning facilities such as schools and office buildings) and toxic emission sources (manufacturing facilities such as chemical manufacturers and lithographic operations). Request a list of toxic air emitters for the region you are interested in reviewing. Remember to ask that the list be sorted alphabetically and include the addresses and SIC codes of the air emitters. Since many state air toxics programs are fledgling, it is important to find out how comprehensive the list of air toxic emitters is. Ask questions like: "How long has the program been operating?" "Is this a comprehensive list of all toxic air emitters?" If a list of air toxic emitters is not available, try and obtain a list of emission sources. At a minimum, a list of "emission sources", whether toxic or non-toxic, will enable you to know whether a facility pollutes the air.

The Resource Conservation And Recovery Act (RCRA)

Hazardous waste generation, storage, transportation, treatment, and disposal are regulated by the Resource Conservation and Recovery Act (RCRA). This act sets up a "manifest system" for tracking hazardous waste from "cradle to grave." If a facility generates hazardous waste, it is required to obtain a generator number. A special permit is needed for facilities that store, treat, or dispose of hazardous waste.

RCRA Highlights

1. Requires hazardous waste manifests that track the waste from cradle to grave.

2. Requires generators to submit biennial reports to the EPA. State agencies regulating hazardous waste may require annual reports. These reports document type and quantity of hazardous waste shipments made during the year.

3. Sets standards for treatment, storage and disposal of hazardous waste.

RCRA: What To Ask For

Once you have contacted the appropriate state agency in charge of regulating hazardous waste (usually called Waste Management Division, Hazardous Waste Division or Department of Waste and Toxic Substances), contact the agency and ask about the types of reports they require from hazardous waste generators. Do they require annual reporting or biennial? Ask for a list of hazardous waste generators sorted alphabetically that includes the generators' addresses and SIC codes.

5. Comparing lists/cross-referencing lists.

After the relevant lists have been gathered, you must cross-reference lists to eliminate facilities that have reported or have no known toxic releases into the environment. Before you start cross-referencing lists you should have copies of the following:

The first step is to cross-reference the list of companies from the Manufacturers Directory with the list of facilities that submitted MSDS's, TierI/II Forms, and Form R's. Remember: Many facilities that submit MSDS's and TierI/II information may need to comply with Section 313 and should be submitting Form R's. In our research, we have used Tier II Forms to verify that facilities have violated Section 313 by failing to disclose their toxic releases to the public. Document those facilities that have submitted MSDS's, Tier I/II Forms and FormER's. Set up a system so you can easily look at your list of manufacturers and identify facilities that have submitted Form R's, MSDS's, TierI/II Forms and have releases into the air, land and water.

Once you have narrowed down the list by eliminating Right to Know reporters, you should cross-reference the list of manufacturers with lists of hazardous waste generators, NPDES permit holders and air emitters to determine whether your potential targets have releases into the environment. Facilities with pollution releases into the air, land and water are your best targets. After you have eliminated facilities from your list that have no known releases into the air, land and water, you are ready to begin the next phase of research to determine whether a company is using enough of a toxic substance to trigger Right to Know's reporting requirements. The following chart represents a typical entry in a manufacturers directory. The columns to the right are an example of how you can neatly document your research.

chart omitted.

As the above model shows, SCM Chemicals should be eliminated from this search because they have submitted MSDS's, TierII Forms and Form R's. Sackett, AJ & Sons is an excellent potential target as they have submitted MSDS's and Tier II Forms but have not submitted Form R's. Sackett also generates hazardous waste and has toxic air emissions. Saga Design & Construction Inc. should be eliminated as they only have nine employees and are exempt from Section 313 reporting requirements. You can keep your research neat and well organized if you use a tracking system similar to the model presented above.

6. Reviewing state agency files to identify RTK violators.

Once your preliminary research is completed and your potential Right to Know violator list has been developed, begin to conduct research at state agencies to try and build your case. Remember, you are trying to determine how much of a specific chemical a facility is using, manufacturing or processing. Your research should be aggressive and comprehensive - Leave no stone unturned!

Strategies to get cooperation from regulators

You will need to contact several regulators in order to find out what types of information are available and procedures for reviewing the information. Contact the information number for the appropriate regulatory agency and ask for the Freedom of Information Officer or the File Clerk. You may have to send a written request to the appropriate staff person. The request should be as specific as possible. Narrowing down your request helps. Regulators tend to resent onerous requests.

The golden rule when dealing with regulators is BE NICE!!! Show them respect and be courteous. If you establish a good rapport with a regulator they may give you "inside information" that can help you build your case. When talking with regulators, you should ask a lot of questions to determine what files are kept, the types of information the files contain, and the appropriate channels to go through to get access to files. When you are dealing with a file clerk, it is imperative that you "get on their good side." File clerks are extremely powerful in that they can deny you access to information or make it difficult for you to review the information. Cookies and thank you letters help!

Use good judgement when describing the purpose of your visit to regulators. Most regulators want to avoid controversy. Try to avoid "alarmist" words or phrases like "want to file a citizen suit," "press-conferences," and "making polluters pay." Never deceive a regulatory official. Feel free to tell the regulators that you are working on a Right to Know research/compliance project and that you are trying to get information that describes the facility's toxics usage or toxic releases into the environment. It may help to tell them that you are doing a comprehensive search (e.g., water, air, hazardous waste, right to know) so they won't feel like their agency is being persecuted. Regulators are regular people, they just happen to hear from industry a lot more than they hear from citizens. (Before initiating an enforcement action or holding a press-conference blasting a polluter, it is a good idea to give the regulators you are working with a few days advance notice.)

Our experience has shown that the most useful files to review are the Tier II files and air toxic files. If the potential target you are researching has submitted Tier II Forms or has an air toxics file, these are the first two files that should be researched.

Reviewing Tier II Forms

If facilities on your manufacturers list have submitted Tier II Forms, they are reporting that they are storing more than 10,000 pounds of a hazardous substance or storing more than 500 pounds of an Extremely Hazardous Substance. Set up an appointment with the State Emergency Response Commission or the Local Emergency Planning Committee to review the Tier II forms. If only Tier I Forms are available, you can request that the SERC obtain Tier II forms from the facilities you are interested in reviewing. Once you have a Tier II Form, you should use the Common Synonym (Section 313) directory to determine whether the company is storing any Section 313 chemicals in quantities exceeding 10,000 pounds. If you have identified Section 313 chemicals on the Tier II form, use the numerical code system to determine the range of the chemical being stored on site. If the amount of a Section 313 chemical being stored on-site falls between the 10,000-99,999 pound range you know the company is exceeding the "otherwise use" threshold. However, you do not know the total chemical quantity used or whether company is "otherwise using", "processing" or "manufacturing" the chemical. Since the threshold quantity for processing and manufacturing is 25,000 pounds versus 10,000 pounds for otherwise using, some companies that look like good targets may be exempt due to the threshold loophole. (If a manufacturer with more than 10 employees is storing more than 25,000 pounds of a Section 313 chemical and has not submitted a Form R, you have definitely found a "smoking gun.")

If the company is storing Section 313 chemicals on-site in quantities below 10,000 pounds, they may still need to submit Form R's. You will need additional information to determine how much of the chemical they actually use on a yearly basis. It is important to keep in mind that TierI/II Forms reveal how much of a chemical/substance is stored on site. Both the maximum daily amount stored and the average daily amount stored are included on TierI/II Forms. Although Tier II information is extremely useful, it is limited in that it fails to give citizens a total use figure for the chemical. Storage figures only tell part of the story. For example, if a Tier II Form shows a company is storing a maximum daily amount of a Section 313 chemical in the 1,000E- 9,999 pound range and the average daily amount is between the 100 - 999 pound range, a number of scenarios are possible. For example, it might be that the company is going through 1,000 pounds of the chemical every week (52,000 pounds/year) or that it is going through 100 pounds each week (5,200 pounds). Every effort should be made to determine how the chemical is being used (e.g., otherwise used, manufactured or processed) and the quantity that the company goes through each year. This is where talking to a friendly regulator familiar with the processes at the plant you are reviewing can be beneficial.

Reviewing Air Toxics Files

Unlike Tier II files which contain standard forms, Air files vary from state to state. Since the Clean Air Act and most state air laws are fairly complex, it is a good idea to get a friendly regulator to explain the law to you. Specifically, you want to find out if any emission data is available, how is it calculated (e.g., is it based on production, pollution equipment efficiency) and whether the state has information regarding a facility's use of toxic substances. In addition, find out how the state identifies facilities as "emission sources" or "toxic emission sources." If available you should review permits, permit applications, fact sheets, inspection reports and emission data. This information describes the processes at the facility(s) and may reveal the company's toxics usage. Emission data is extremely important as it is usually calculated by production inputs, operating time and pollution control efficiency. (E.g., Company A uses 108,000 pounds of isopropyl alcohol each year. The plant operates 8 hours a day 5 days/week. Pollution control efficiency = 95% total isopropyl alcohol emissions = 5,400 pounds per year.) Inspection reports may also be helpful as they sometimes reveal chemicals stored at the plant. Actual stack testing is rare, but if available, this information can be extremely useful. It is also helpful to review enforcement files to determine whether the state has issued any Notice of Violations or initiated any enforcement actions against the facility. This will help you gain leverage when negotiating a use reduction agreement with the facility. If the air files fail to reveal a smoking gun, talk to the inspector in charge of the facility and specifically ask him/her about the company's use of toxics.

Reviewing Hazardous Waste Files (RCRA)

If a facility generates over 100 kilograms of hazardous waste each month, it must obtain a generator number and file biennial reports to the EPA. In addition, most states require similar reports on a more frequent basis. For example, Virginia and Maryland require annual reports. A biennial or annual report documents the quantity, nature and receiver of hazardous waste shipments on a standard state or EPA form. The information is useful in that it provides actual quantity figures for hazardous waste shipments. However, identifying actual chemicals being disposed of can be a difficult task. Files pertaining to a facility's hazardous waste shipments may not reveal the smoking gun, but can usually serve as a good indicator as to whether a facility is using large quantities of toxics. Biennial or annual reports should be made readily available to citizens upon request. Below is an example of information contained in a biennial or annual report.

Name, address and generator ID # 1989
Name, address and ID # of receiver
Hazardous Waste Description:
Hazardous Waste Solid, N.O.S. ORM-E (Plating Sludge) F006 -
Total Quantity shipped off-site = 25,000 pounds
Hazardous Waste Liquid N.O.S. F003 - Total Quantity Shipped
off-site = 15,000 gallons.

After reviewing the example on page 9, the researcher should be asking several questions. How many pounds of hazardous waste liquid are in a gallon? What specific Section 313 chemicals are contained in the waste? If Section 313 chemicals are contained in the hazardous waste, how much of those chemicals does the facility "otherwise use," "process" or "manufacture?"

When facilities are disposing of liquid wastes, they will often use a gallon figure without documenting the density. Water's density is approximately 8 pounds per gallon. Most hazardous liquids will have a density between 7 and 11 pounds per gallon. Organic acids, such as benzoic and acetic acid, are usually lighter than water as are most industrial solvents such as acetone and toluene. Mineral acids such as hydrochloric and sulfuric acids are heavier than water.

Annual or biennial reports may sometimes reveal a smoking gun as the facility has named the specific metals, acids or solvents they are shipping off-site (e.g., 50,000 pounds of 1,1,1, Trichloroethane shipped off-site). Usually, other sources of information will have to be reviewed to determine specific toxics usage. If the annual reports fail to provide chemical specific information, ask the state agency for copies of Waste Stream Analyses which document the specific wastes contained in the hazardous waste shipments. Also, copies of hazardous waste manifests may sometimes contain chemical specific information. Due to the outrageous quantity of hazardous waste generated each year, many states do not have copies of manifests or waste stream analyses. However, upon request, the generator is supposed to make this information available to the state. States will usually have correspondence, enforcement, and permit files on generators, especially if they have a permit to Treat, Store or Dispose (TSD Permit) of hazardous waste. These files should be reviewed to determine whether they contain chemical specific information. Talk to the inspector assigned to the generator to try and get "inside information" regarding the generator's use of toxics.

Reviewing Water Files

Contact the appropriate state agency to set up an appointment to review the water files. If the facility discharges into a sewage treatment plant, you will have to contact the sewage treatment plant to review the "pretreatment" files. Review the actual NPDES permit, the permit application, Discharge Monitoring Reports (DMROs), fact sheets, enforcement files, and correspondence files.

The permit application will have useful information that describes the discharger's processes and may include information regarding the discharger's toxics usage. Enforcement files and correspondence files should be reviewed to evaluate past compliance problems. These files will sometimes reveal chemical specific information.

The NPDES permit will contain effluent standards or limitations, flow limits, testing protocols and the name of the waters receiving the polluter's discharge (e.g., allowed to discharge a maximum daily amount of 15 mg/l (Milligrams per liter) of Copper into Hound Creek. Flow not to exceed 100,000 gallons per day. Copper is to be tested daily.) To estimate pounds of a substance going into the water, the following conversion can be used:

FLOW (million gallons/day) x CONCENTRATION (mg/l) x 8.33 = POUNDS/DAY

EX: The amount of copper permitted to be dumped into Hound Creek each day would be .1 (million gallons per day) x 15 (mg/l) x 8.33 = 12.49 pounds per day.

By reviewing the actual Discharge Monitoring Reports which are usually required monthly, one can estimate the actual amount of pollution being dumped into a waterbody. One can also identify Clean Water Act violators by reviewing the Discharge Monitoring Reports and comparing the reported quantities with the actual permit limits. If the polluter's tests show they are discharging more pollutants than allowed by their permit, a citizen can sue the polluter to enforce the permit standard.

Getting the REAL Toxics Story

Billions of pounds of chemicals released into the air, land and water go unreported each year due to non-reporting companies, inaccurate reporting, exemptions and loopholes in the Right to Know Act. The research methods described above can be used to verify Right to Know data and supplement the incomplete data with additional toxic release information. This will help you "get the real toxics story" with respect to polluters in your neighborhood or region of interest.

In order to verify the quality of Right to Know data, copies of Form R's should be compared with the information contained in the water, air and hazardous waste files. For example, if a company's Form R shows that 25 pounds of toluene has been dumped into Hound Creek and the company's NPDES permit does not regulate toluene, the company has an unpermitted and illegal discharge of toluene.

Section 313 only requires reporting for approximately 320 chemicals. By reviewing the air, water and hazardous waste files for chemicals not regulated by Section 313, you can supplement the Right to Know data and expose a facility's total releases into the environment. For example, a company in Virginia reported shipping off-site 18,000 pounds of SectionE313 chemicals during 1988. After reviewing their hazardous waste files, we discovered that the company actually shipped over 460,000 pounds of hazardous waste off-site. The Right to Know Act only requires the company to report 4% of the actual hazardous waste it shipped to off-site locations.

Citizens throughout the United States are faced with a seemingly endless onslaught of toxic pollution. By identifying violators of the Right to Know law and other toxic laws, you can gain legal and organizing leverage in endeavors to rid your community of toxic hazards.

Other Right to Know Fact Sheets Available:

For more information regarding the Right to Know Law and/or additional Fact Sheets contact:

Environmental Action Foundation
1525 New Hampshire Ave., NW
Washington, DC 20036
(202) 745-4870

Source: RTK Net, Washington, DC

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