SIDNEY M. WOLF
|Source:||Copyright © 1996 Journal of
Land Use &
Environmental Law (Note: Unfortunately, this
version of the paper does not include footnotes.)
On December 4, 1984, more than 2500 people were killed and over 200,000 others injured in Bhopal, India when a highly toxic pesticide was released from a storage tank at a Union Carbide facility. Nine months later, more than 150 individuals required medical attention when another toxic chemical used to make pesticides, aldicarb oximine, was released by a Union Carbide facility in Institute, West Virginia. In Bhopal, Union Carbide failed to seriously consider emergency prevention measures in operating its pesticide facility. Additionally, its emergency response planning and resources were clearly inadequate. In West Virginia, Union Carbide's officials failed to notify local authorities about the release of the pesticide-laden gas because they did not believe the gas would leave the plant's perimeter.
In both accidents local authorities were confused about what was happening, what substance was involved, and how to protect citizens. No comprehensive national program existed to provide local citizens with important information on hazardous chemicals in their communities, or establish emergency planning and response requirements, despite the magnitude of the toxic chemical releases. In 1985 the Environmental Protection Agency (EPA) determined that during the previous five years more than 6900 incidents involving the release of toxic chemicals had occurred in the United States, causing 135 deaths and nearly 1500 injuries.
Congress sought to remedy this shortcoming through the passage of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). This Congressional action was influenced by two things: (1) a strong grassroots movement which had previously resulted in numerous state and local laws meant to provide workers and communities with information on chemical hazards; and (2) the lack of information on toxic waste generation by factories. But it was the Bhopal tragedy which finally pushed Congress to attempt to alleviate the lack of comprehensive emergency response planning and the scarcity of information on dangerous chemical releases around the nation. Prior to Bhopal, Congress had been concerned primarily with reworking the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), commonly called the "Superfund" law, which was propelled into being by another famous toxic chemical tragedy, Love Canal. Bhopal convinced Congress, in the midst of its consideration of the reauthorizaton of CERCLA, to promulgate statutory provisions addressing the concern about toxic chemical releases and accidents.
Originally, EPCRA was introduced as a separate bill, but Congress inserted it into the Superfund Amendments and Reauthorization Act of 1986 (SARA) as Title III. SARA was intended to amend the original Superfund Act. EPCRA, however, was meant to be a free-standing law and not part of CERCLA or its amend ments. Rather, EPCRA was enacted to "establish programs to provide the public with important information on the hazardous chemicals in their communities, [as well as to] establish emergency planning and notification requirements which would protect the public in the event of a release of hazardous chemicals."
As its name implies, EPCRA has two major functions: (1) emergency planning and notification; and (2) community right-to-know. Both functions involve information gathering and dissemination. Implementation of EPCRA occurs to a great degree through the requirement that businesses and industry make information on their chemical use and disposal publicly available.
The emergency planning facet requires states and local communities to make advanced preparations for dealing with emergencies relating to hazardous materials. These requirements are intended to prepare state and local communities for chemical accidents, of both major and minor proportions. EPCRA does not dictate that any particular method of emergency planning be adopted by a community or local government, but rather provides a framework within which local governments and citizens can fashion measures for emergency planning. The emergency notification procedures, however, do direct that state and local agencies be immediately informed of hazardous chemical releases so that they can take appropriate action.
The community right-to-know feature of EPCRA provides ordinary citizens, without the help or need of governmental intervention, with new rights to critical information about hazardous and toxic chemicals possessed and released by businesses. As a means to effectuate community right-to-know, EPCRA requires unprecedented disclosure by industry, as well as citizen access, concerning the presence and release of hazardous and toxic chemicals at industrial locations. The right-to-know portions of EPCRA were hotly debated, and were included in the Act despite heavy opposition from industry and the Reagan Administration EPA.
EPCRA started out in obscurity. Unlike other major federal pollution control statutes (such as the Clean Water Act, Clean Air Act and CERCLA), it remains relatively obscure. However, it has turned out to be one of the most significant pieces of environmental legislation in decades, most particularly its right-to-know provisions about toxic chemicals, the Toxics Release Inventory (TRI). TRI requires manufacturing facilities to report routine releases of toxic chemicals to the public and the EPA. Making TRI data publicly available to any citizen has been described by an EPA administrator as "among the most important weapons in efforts to combat pollu tion." The present Clinton EPA administration regards the TRI as "among our most potent environmental weapons."
This article is likely the most comprehensive law journal article on EPCRA to date. Part II describes the legislative provisions in detail. Part III examines the initial worries about EPCRA from those who had the most to fear from it: governmental officials and industry. Part IV discusses whether these fears were justified. One such fear that did prove valid was industry's concern that publicly-provided information on toxic chemical releases would lead to a backlash against toxic polluters and stronger efforts to uncover and control toxic pollution. Part V discusses the profound effect the TRI has had on environmental organizations, the press, legislators, regulatory agencies, and most importantly, industry. And finally, Part VI describes recent threats to the very existence of the TRI program by the so-called "regulatory reform" pursued by the Republican-led Congress as part of that party's "Contract with America" campaign.
II. EPCRA PROVISIONS
EPCRA is organized into three subtitles. Subtitle A, "Emergency Planning and Notification," consists of sections 301-305. This subtitle establishes the procedure used to create state and local emergency planning bodies, the development of emergency response plans, and emergency notification requirements in the event of chemical releases. Subtitle B, "Reporting Requirements," covers sections 311-313, and creates the right-to-know component of the legislation through reporting requirements for facilities where toxic and hazardous chemicals are found. Subtitle C, "General Provisions," encompasses sections 321-330 and includes, among other things, trade secret protection, enforcement, and citizen suits.
A. Emergency Planning and Notification
1. Emergency Plans
Under EPCRA, states are required to establish two kinds of governmental entities to undertake emergency planning and process the information which businesses are required to submit: (1) state emergency response commissions (SERCs); (2) and local emergency planning committees (LEPCs). The SERCs, appointed by the governor, serve as the focal point for emergency response coordination. They also provide a federal government link for enforcement requests. In turn, SERCs divide the state into local emergency planning districts, appoint a LEPC for each and supervise and coordinate the LEPC's activities.
The LEPCs, which theoretically represent a broad cross-section of their communities, are required to prepare and implement plans for chemical emergencies. Both SERCs and LEPCs are responsible for receiving and processing information received by businesses for emergency planning, and must formulate procedures for handling public requests for this information.
EPCRA provides no more than a road map for the preparation of emergency plans, specifying minimum requirements and leaving the details up to the LEPC. Funding is also up to the LEPC. EPCRA does not authorize federal funds to support this planning effort.
2. Emergency Planning Notification—Covered Facilities and Substances
Emergency response planning by states and communities is directed at facilities which use or store "extremely hazardous substances" (EHS) in excess of "threshold planning quantit[ies]" (TPQs). These hazardous substances were originally drawn from a list of 386 chemicals published by the EPA a year before the enactment of EPCRA. Facilities which have threshold amounts of any EHSs on their premises must designate a business emergency planning coordinator, notify the SERC of the presence of the substance, and cooperate with the LEPC in emergency planning. Additionally, a facility subject to the emergency planning and notification requirements for EHSs must provide the LEPC with all the information necessary, or requested, to develop a plan. This information typically includes safety audits and hazards assessments. All information provided to the SERCs and the LEPCs by the covered facilities must be made available to the public.
3. Emergency Release Notification
EPCRA requires a facility to immediately notify the community and the state (i.e., the LEPC and the SERC) of any release or spill of predetermined amounts outside the facility's boundary. These predetermined amounts are designated as a "reportable quantity" (RQ) of hazardous substances and extremely hazardous substances. Chemicals covered under the emergency release notification include not only over 300 EHSs to which emergency planning requirements apply, but also more than 700 hazardous substances subject to the emergency release notification requirement of the Superfund law. More facilities are covered under the emergency release notification requirements than under the planning requirements, because release reporting may be required even when the TPQ of a substance is not present.
For some of the most hazardous and toxic chemicals on EPCRA and Superfund lists, releases of more than one pound must be reported. For others, the reporting quantities range from ten pounds to ten thousand pounds. All accidental release information provided to the LEPC or the SERC is available to the public.
B. Community Right to Know
There are two kinds of industry-provided information which provide the basis for community right-to-know under EPCRA. One kind of information available to the public pertains to use and storage. This kind of information includes reports of the types, amounts, location and potential effects of hazardous chemicals being used or stored in designated quantities in a community. The other kind pertains to releases and includes reports of toxic chemical releases into the air, water or soil.
1. Hazardous and Extremely Hazardous Chemical Reporting
Hazardous chemical reporting under EPCRA builds upon the Occupational Safety and Health Act of 1970 (OSHA) and its regulations, which previously provided employees with a "right to know" about hazardous chemicals in the workplace by allowing them access to Material Safety Data Sheets (MSDSs) as prescribed by OSHA's Hazard Communication Standard (HAZCOM). More than 50,000 hazardous chemicals are covered by the HAZCOM standard.
There are two different ways facilities must report on their production, use, or storage of OSHA-regulated hazardous chemicals. First, facilities must report on-site chemicals to the SERC, the LEPC, and the local fire department. This requirement covers hazardous chemicals specified under OSHA, that is, chemicals for which employers must maintain MSDSs. Section 311 of EPCRA directs that if a facility is required to prepare MSDSs under OSHA, it must submit either actual copies of its MSDSs or lists of MSDSs for hazardous chemicals exceeding threshold amounts to the SERC, the LEPC, and the local fire department. The EPA is authorized to establish the threshold quantities for this form of reporting. The reporting requirement is triggered if during the previous year, a facility held more than 10,000 pounds of a hazardous chemical, or more than 500 pounds or 55 gallons, or above the threshold quantity, whichever is lower, of an EHS. The MSDSs or lists must be updated whenever a facility uses more than a threshold amount of a new chemical. A public request for a facility's MSDS information must be made through the LEPC, which in turn is required to obtain the MSDS from the facility and make it available to the public.
Second, companies that submit MSDSs or lists are also required to file more detailed chemical inventory information with the LEPC, the SERC, and the local fire department. These inventory forms, required under section 312 of EPCRA, provide information on the types, the amounts (in ranges) and the general location of chemicals present at a facility. This information is important because it alerts communities as to how and where large amounts of potentially dangerous chemicals reside. Although the LEPC and the SERC must respond to public written requests for inventory data on a chemical within forty-five days, fulfilling these requests is discretionary, unless the chemical is an EHS or if more than 10,000 pounds of the chemical is held on-site at any one time.
There is a two-tier approach to the annual chemical inventory reporting. The Tier I form, submitted to the LEPC, the SERC, and the local fire department, is essentially an annual general summary of the aggregate amounts and general locations of all chemicals at a facility. The chemicals are grouped in categories according to health and physical hazards; specific chemical identities are not revealed. In contrast, the Tier II form is for specific chemicals and is more detailed about location and storage information.
Tier I forms are required, but Tier II forms are not, unless they are requested for specific chemicals by the LEPC, the SERC, or the local fire department. However, a company may elect to provide Tier II forms instead of the Tier I version. A key difference between the two levels of information—and a key reason why companies may prefer to provide Tier II forms—is that Tier I information is readily discloseable to the public, while the availability of Tier II information is subject to restrictions. Tier II availability depends upon the status of the requesters, and whether they are: (1) SERCs, LEPCs, or the local fire department; (2) state or local officials; or (3) the public.
The MSDSs, the MSDS lists, and the chemical inventories of sections 311 and 312 of EPCRA can be considered part of the community right-to-know because they consist of reported information that is readily available to the public. However, the most significant use of this information is for emergency planning. The bulk of the information used by LEPCs for preparing emergency release response plans is provided this way.
2. Toxic Chemical Release Reporting
The most far-reaching, important and controversial right-to-know provision in EPCRA is section 313. Section 313 requires large manufacturing facilities to file annual reports on routine releases and transfers of several hundred toxic chemicals found in wastes.
The reports are collected by the states and the EPA and disseminated through a variety of means. The EPA must make this information public in a computerized database. The data collected by the EPA is collectively known as the TRI data. The TRI database is the first chemical-specific, multi-media accounting of toxic releases to the environment ever mandated by federal law.
According to EPCRA, the toxic chemical release reporting forms are intended to provide information to federal, state, and local governments and to the public, including citizens who live in areas surrounding the facilities which released or transferred the toxic chemicals. TRI data is meant to inform citizens about toxic chemical releases and transfers, assist government and researchers in conducting research and data gathering, and aid in the development of environmental regulations and standards.
The TRI reporting covers releases that occur as a result of normal business operations, and must be distinguished from section 304's reporting requirements for abnormal emergency releases. The toxic chemical release reports are submitted on standardized forms (Form R) created by the EPA. Form R is submitted to the EPA and state environmental agencies. Facilities must use Form R to report their total annual releases of toxic chemicals into the air, surface water and soil, as well as transfers of these chemicals off-site to public sewers or waste treatment, storage or disposal facilities. The report must use estimates of releases, not actual measurements of releases. The first toxic chemical release forms were supposed to be submitted on July 1, 1988 to cover releases for the 1987 calendar year, and then every year afterwards by July 1 to cover preceding calendar year releases.
Reporting is generally directed at large manufacturing operations. EPCRA specifies that an establishment is required to report only if it meets three criteria. The facility must: (1) manufacture in Standard Industrial Classifications (SIC codes) 20-39; (2) employ ten or more full time workers; and (3) manufacture, process, import or otherwise use toxic chemicals above yearly threshold amounts.
EPCRA originally established a threshold of 10,000 pounds for use of toxic chemicals, and a declining threshold for manufactured or processed toxic chemicals: 75,000 pounds for the first report for the 1987 calendar year, 50,000 pounds for the next year, and 25,000 pounds for subsequent reports. The toxic chemical release reporting requirement was originally applied by EPCRA to a list containing 320 chemicals, although the EPA has the authority to add or delete toxic chemicals to the list on its own initiative or by petition. In 1994, the list of reportable TRI chemicals nearly doubled, to over 600.
Congress expanded the TRI reporting requirements in 1990 with the enactment of the Pollution Prevention Act (PPA). The goal of this legislation was to encourage industry to engage in pollution pre vention, which is directed at eliminating or reducing the generation of pollutants, as opposed to pollution control, which is directed at managing pollutants and wastes once they are created. Pollution control is overwhelmingly the predominant means by which pollution is regulated in the United States. PPA's main objective was to encourage the pollution prevention strategy of source reduction, where the pollution is curtailed at the industrial origin.
The initial Form R adopted pursuant to EPCRA required facilities to report releases to air, land and water and certain transfers of TRI chemicals off-site. Reportable off-site transfers included shipments of toxic chemical wastes for treatment or disposal. With the adoption of the PPA, reporting additional kinds of releases was required: on-site and off-site transfers of TRI chemicals; and source reduction, recycling, and waste minimization efforts by companies. For reporting purposes, one-time releases of an accidental, remedial or abnormal nature were added to routine releases. As a result of the PPA, Form R reporting requirements added TRI chemicals sent elsewhere to be recycled, as well as reporting of on-site TRI chemical recycling and treatment. Waste stream data in the TRI form was required by the PPA's decree that the form include the quantity of TRI chemicals generated as waste prior to recycling, treatment, or disposal. Finally, the PPA directed that Form R was to include source reduction efforts undertaken by the facility for the TRI chemicals. All the additional reporting mandated by the PPA was to begin in the 1991 reporting year.
C. Other Provisions
1. Trade Secrets
EPCRA allows facilities to exempt their trade secrets from reporting requirements, but the withholding of such secrets is limited, and subject to confidential reporting to, and approval from, the EPA. Only a specific chemical identity may be protected as a trade secret. Even a trade secret chemical must have its generic class or category submitted to the EPA if it is classified as hazardous, extremely hazardous, or toxic. Trade secret protection does not apply to emergency release notification of hazardous substances.
In order for a chemical to be entitled to trade secret protection, certain statutory conditions apply: (1) the withheld information must not have been disclosed to anybody other than the government or a person bound by a confidentiality agreement; (2) no disclosure is likely under any other law; (3) forced disclosure must be likely to cause harm to the competitive position of the business; and, (4) it must be unlikely that the chemical would be discovered through reverse engineering.
The facility seeking to withhold the information has the burden of establishing trade secret protection. If the EPA has determined that the information is not a trade secret, it cannot be withheld. Information on trade secret chemicals may still be disclosed to certain members of the public or the state under certain circumstances: information must be disclosed to health professionals for diagnostic, treatment, and preventative purposes. Upon a request by the state's governor, the EPA is required to provide trade secret information to the state. Trade secret claims may be challenged by the public by petitioning the EPA.
EPCRA expressly does not preempt any state or local law or affect or modify the obligations or liabilities of any person under other federal laws. As a result, a state or locality may impose stricter requirements for emergency planning, reporting, and notification regarding the release of hazardous and toxic chemicals.
3. Enforcement and Civil Suits
(a) Federal Government Enforcement
EPCRA provides the federal government with a system of administrative, civil and criminal penalties for enforcement of the legislation. Enforcement measures are primarily directed towards facilities which violate the law; there are no enforcement provisions which would allow the EPA to undertake an action against a governor, a SERC, or a LEPC for failing to carry out responsibilities for implementing or administering portions of EPCRA.
The EPA can order a facility to comply with the emergency planning notification requirements and enforce the order in federal district court. The federal court can impose a civil penalty of up to $25,000 per day for each violation of an EPA order to comply with the emergency notification requirements. The EPA can also assess administrative penalties. The EPA may impose one of two kinds of administrative penalties: Class I, which involves an informal administrative process and allows a maximum penalty of $25,000 per violation, or Class II, which involves a formal administrative process and allows a penalty of up to $25,000 per day for each day the violation continues.
Additionally, the EPA may initiate administrative actions or civil suits in federal court to collect penalties for violations of requirements relating to MSDS information, toxic chemical release forms, emergency and hazardous chemical inventory forms, or trade secret claims. Failure to submit MSDSs or lists of MSDS chemicals, to provide information requested by health professionals on trade secret chemicals, or to submit all information the EPA requires to evaluate a trade secret claim is subject to penalties of up to $10,000 per day for each violation. A civil or administrative penalty of up to $25,000 per violation can be assessed for failure to comply with the TRI inventory requirements, for failure to comply with the annual emergency and hazardous chemical inventory requirements, and for frivolous trade secret claims.
EPCRA's criminal coverage is much more limited than its civil and administrative coverage. Criminal prosecution is limited to violations of emergency notification requirements and for unlawful disclosure of trade secret information.
(b) Enforcement by Citizens, State Governments, and Local Governments
Two kinds of suits are authorized by EPCRA, those allowed for "any person" and those restricted to state and local governments, including SERCs and LEPCs. The first kind, commonly known as the citizen suit, can be divided into four categories based upon the nature of the defendant. First, citizen suits can be brought against facilities. These include suits for failure to submit emergency follow-up notices, MSDSs or MSDS lists, Tier I hazardous chemical inventory forms, and toxic chemical inventory forms. Second, citizen suits are allowed against the EPA for failure to carry out its responsibilities under the Act. Such neglected responsibilities may include publishing uniform hazardous chemical inventory forms, responding to petitions to list or delete substances subject to the TRI reporting, establishing TRI computer databases, promulgating trade secret protection regulations, or rendering timely decisions to petitions challenging trade secret protection by facility. Third, where the EPA or a state fails to provide a mechanism for public access to EPCRA information, a citizen suit is authorized to obtain compliance. And finally, citizen suits are permitted against the EPA or a state for failure to respond within 120 days to a public request for a Tier II annual hazardous chemical report from a facility. It should be noted that EPCRA does not authorize citizen suits against LEPCs.
States or local governments can bring suits against facilities for failure to provide emergency planning notification, MSDSs or MSDS lists, MSDS information sought by a LEPC or the public, or hazardous chemical inventory forms. SERCs, LEPCs, or fire departments may institute suits against facilities for failure to provide emergency response plans and Tier II hazardous chemical inventory forms. A state can sue the EPA for its failure to comply with a state's request for the identity of a chemical for which a facility has claimed trade secret protection. In any of these EPCRA suits, the federal court can award attorney fees and costs to any party that prevails.
4. Availability of EPCRA Information to the Public
Except for trade secrets, EPCRA provides that each emergency plan, MSDS, hazardous chemical list, chemical inventory form, toxic chemical release form, and written follow-up emergency notice, must be made available to the general public at government offices designated by the EPA, the state, or the local emergency planning com mittee. Each LEPC must annually insert public notices in local newspapers that such information is available to the public. Congress understood that for data obtained from the toxic release forms, the EPA could fulfill the requirement for public availability by establishing a national computer database for TRI data which is accessible to the public.
III. FEARS, CONCERNS, AND EXPECTATIONS FOR EPCRA
Virtually all the early fears and apprehensions about EPCRA came from business and industry. Some of their concerns proved to be completely unwarranted; others were fulfilled, but in varying degrees. Certain unwelcome consequences had been completely unanticipated but turned out to be quite significant.
Environmental groups had few major discernible reservations or great expectations about EPCRA at first. For them, like the general public, EPCRA was an obscure, relatively unimportant informational law compared to other federal pollution laws with regulatory purposes and clout. Conversely, EPCRA has turned out to be a boon to environmental organizations.
State and local governments had some early concerns about the impact and burdens of EPCRA. The federal government initially had few concerns or hopes for EPCRA, and therefore, the law was given low priority. However, the legislation eventually increased in importance for the federal government.
A. Business Cost and Burden Concerns
The EPA originally estimated that EPCRA would cost the average business between $400 and $10,000 a year. Obviously, large companies can afford the cost of environmental compliance with EPCRA more easily than small companies. Typically, small business interests complain about new or additional government regulation as both unnecessary and overly burdensome and inflexible. This complaint is frequently accompanied by proposals to eliminate or dilute regulatory requirements upon small businesses. Speaking for these concerns, the Small Business Administration (SBA) during the Bush Administration characterized EPCRA as creating "much pain, little gain" for small business.
Shortly after EPCRA was enacted, the EPA proposed rules establishing thresholds for the MSDS reporting and hazardous chemical information inventory form reporting under sections 311 and 312 of EPCRA. The proposed rule called for phasing-in the threshold for hazardous chemical inventory reporting at 10,000 pounds the first year the rule would take effect, 500 pounds the second year and zero the third year.
The SBA disagreed with the EPA's certification that the proposed rule would not have a significant impact on small businesses, arguing that it would annually "cost thousands of dollars for over 100,000 small business facilities, many of which have profits in the $10,000 range." It urged the EPA to increase the threshold instead and thus effectively exclude small businesses from hazardous chemical inventory reporting. The SBA maintained that more TRI reporting by small businesses would yield little useful data while creating high costs for them. The SBA argued that the EPA should use its discretion to adopt either risk-based or emissions-related requirements for reporting, instead of basing the TRI reporting on aggregate production or use-based amounts and on SIC manu facturing categories. This suggested approach was intended to effectively exempt most small businesses from the TRI reporting, since it concluded that the releases of thousands of small facilities posed little or no risk to the environment and constituted only a small portion of overall releases.
B. State and Local Government Cost and Paperwork Concerns
The main concern of localities and states was the additional paperwork and financial burdens that EPCRA might create for them, since the responsibility for chemical disaster emergency planning falls exclusively upon state and local governments through their respective SERCs and LEPCs. Additionally, states share responsibility with the EPA for receiving and using the TRI reports. Administration of the other reporting and notification requirements of the legislation variously fall upon the SERCs, the LEPCs, and the fire departments.
An early study in Texas found that even communities with established emergency planning and response programs anticipated that managing right-to-know data and public outreach would be a serious burden. The greatest early concern of local officials around the nation was the prospect of being swamped with paper. One fire chief noted that as a result of the first-time facilities required to submit MSDS information and annual hazardous chemical inventories, 33,000 fire departments, 30,000 of which were volunteer, faced receiving from 3 million to 20 million documents detailing the hazardous properties of 50,000 chemical products. The fire chief doubted whether fire departments could bear or afford the responsibility.
Rural areas were assumed to be less able to cope with and afford EPCRA responsibilities than urban areas. The Director of the New Jersey Division of Environmental Quality, which administered a community and state right-to-know law enacted prior to EPCRA, noted from experience that funding, or lack of it, was the key factor to successful implementation of any new program and predicted that many state and local efforts would fail because of insufficient funding. He and other state officials contended that federal financial and technical assistance and EPA leadership was important to state and local efforts to undertake EPCRA, but questioned whether this help and guidance would be forthcoming.
C. Loss of Trade Secrets
The issue of trade secrets was an early cause for concern after the enactment of EPCRA. Environmentalists feared that the Bush Administration EPA was moving toward being too permissive in granting trade secret protection requests for information required by EPCRA, with the result that industry would be able to withhold data necessary to protect public health and the environment. Most of the anxiety expressed over trade secrets came from industry and its sympathizers in government. One commentator called the requirement that businesses divulge trade secrets to the EPA a "formidable burden" and one which could "ruin many businesses."
Once a trade secret is lost, it is lost forever. The information can fall into the hands of competitors either from the EPA's failure to grant protection under EPCRA, or leaks from Congress, the EPA, or state governments. EPCRA was criticized because it allegedly would require manufacturers to report information which they previously withheld as confidential under the Toxic Substances Control Act (TSCA). Trade secret protection under EPCRA was characterized as confusing, unreliable, unpredictable, and unwieldy. Ad ditionally, the EPA would "find itself awash in trade secret issues to a far greater degree than any federal agency in history." An EPA spokesperson predicted that trade secrecy issues under EPCRA would be heavily litigated.
D. Litigation and Enforcement Concerns
EPCRA created widespread industry dread about expensive lawsuits and costly damages which might result from the enforcement or use of the legislation. This anticipated litigation was expected to rise from the three fronts of numerous citizen suits, federal enforcement actions and penalties, and toxic torts based upon information generated by EPCRA.
EPCRA was called the "most important environmental enact ment of the 1980s" by one attorney providing instruction at a conference informing businesses on how to cope with expected EPCRA lawsuits. He called section 313, the TRI provision, the "nuclear bomb" of the law, and regarded it as a fruitful basis for citizen suits that alleged failed or flawed submissions of forms by companies. A corporate attorney intimated that minor or inadvertent errors could become the basis for citizen suits. Citizen suits over toxic and hazardous chemical information held the prospect of becoming "embarrassing" to businesses. A few of the early EPCRA citizen suits filed by one major regional environmental group were interpreted by a corporate law publication to be the tip of the iceberg for future citizen suit litigation. It was also predicted that citizen suits would provide the bulk of EPCRA enforcement. The EPA, as well, expected citizen suits to be a significant enforcement factor for EPCRA.
Filing citizen suits is one form of enforcing EPCRA. Another form of enforcement that created anxiety for businesses was enforcement of the legislation by the federal government, in particular by the EPA. In both instances business feared being hit with heavy penalties for EPCRA violations. There was concern that small businesses would become major victims of the EPA's enforcement, a prospect the EPA very early attempted to dispel.
The most extensive alarm raised about EPCRA-connected law suits was that they could have a far-reaching and significant effect on increasing the exposure of businesses to toxic tort litigation. One corporate attorney called EPCRA a "veritable gold mine" for potential plaintiffs in toxic tort suits. Information a producer or user of chemicals is forced to divulge concerning its emissions or practices under EPCRA supposedly can be used by plaintiffs' attorneys to investigate and find situations for toxic tort suits, to identify defendants, and to ease discovery and proof of liability in such suits. Toxic tort suits are typically time-consuming and costly. One corporate lawyer noted that EPCRA lowers the "entry barriers" to toxic tort litigation.
It was feared that right-to-know data would create "sensationalism" and a bad litigation climate for industry with the publication of "terrifying" chemical data, distort the public perception about chemical risks which would lead to harsh public perceptions about chemical releases, provide large amounts of chemical data that non-traditional experts could use to acquire undeserved credibility, and raise the possibility of increased jury awards when a defendant failed to comply with any EPCRA requirement. EPCRA was seen as a potent discovery instrument for litigation not only involving toxic torts, but also regarding facilities, personal injury, product liability and zoning.
EPCRA information in general may serve as a potential tool to enforce other environmental laws. The EPA was expected to use information under EPCRA not only to enforce this law, but also to enforce other major environmental laws like RCRA, CERCLA, the Clean Air Act, and the Clean Water Act. EPCRA reports were seen as enabling the EPA and citizen litigants to uncover evidence of discharges in violation of these other laws.
E. Preemption Concern
Concern about preemption arose. EPCRA expressly provides it will not preempt state and local laws. From the business perspective, preemption was preferred because it was feared the failure of EPCRA to preempt state and local emergency planning and community right-to-know regulation would lead to conflicting requirements in which businesses would be caught in the middle. It was contended that EPCRA would be no more than a regulatory floor, allowing sharply divergent local interests in several jurisdictions to impose different requirements that would dramatically increase the cost of compliance due to additional paperwork, chemical lists, and reporting demands.
For the states, the preemption concern ran in a different direction. States feared that the EPA would forget the existence and importance of state and local programs and neglect to integrate EPCRA responsibilities and requirements with them. This state sensitivity over preemption by EPCRA had some basis in past experience. OSHA had conflicted with state and local community and worker right-to-know laws, and the federal courts largely deter mined that OSHA preempted them.
F. Burden on Federal Government
The EPA found the responsibilities of EPCRA to be daunting. An EPA assistant administrator whose division would be responsible for managing EPCRA saw the "sheer magnitude" of handling the information as a serious challenge. He noted that the EPA had to take an enormous amount of EPCRA data and put it in a form understandable to the public. He predicted 30,000 facilities would have to file information in the first year, that this number would double in three years, and that over this period a total of 120,000 reports would be handled by the agency.
G. Public Chemophobia
By far, the greatest fear stirred up by EPCRA was the fear by some in the chemical industry that this newly released information would lead to a severe public reaction against them. The head of the EPCRA committee of chemical industry executives, a group formed by the Chemical Manufacturers' Association, described the public as "chemophobic." An IBM executive told a trade association that once EPCRA information was made public it is "probably going to scare a lot of people." The chairman of Du Pont Chemical advised the chemical industry to try to convince the public that chemical releases were "not of crisis proportion." A corporate attorney was particularly graphic, stating that there may be "panic in the streets" when EPCRA information is revealed to the public for the first time and that the law would "lift the veil of secrecy" about chemicals and "create a new mystery: how can companies release toxic chemicals without killing us all?" Reagan Administration EPA officials appeared to share this general industry perception that the public would be shocked by what EPCRA revealed.
Public concern about toxic chemicals, in and of itself, was not what industry most feared, but rather the consequences of that concern. Perhaps the worst nightmare of industry was the description of the law provided by a corporate environmental lawyer: "[a]s it discloses, it will inform, it will interest, and it will be a rabble rouser." An environmental official from Johnson Wax expressed the worst consequence industry could face from EPCRA disclosures: that EPCRA would lead to greater governmental environmental regulation when the public reacted to the risks perceived from the disclosed data. Fear of an adverse reaction from a Schemophobic" public and more governmental regulation prompted a few prescient industry representatives to warn their allies and colleagues throughout American manufacturing that EPCRA could be a public relations nightmare and that they should engage in damage control as early as possible.
IV. FEARS FULFILLED AND UNFULFILLED
A. No Trade Secret Problem
The concern about trade secrets appears unwarranted. Very few trade secret claims have been made under EPCRA. In the first year of TRI reporting, the EPA indicated that for over 19,000 facilities submitting TRI reports, only twenty-eight filed forms with trade secret claims. The EPA received about 2000 trade secret claims for MSDS information submitted under section 311 of EPCRA, a relatively modest amount considering that at least 3 million MSDS forms for over 50,000 chemicals are annually submitted under this program. Leaks of trade secret information would seem an even more tenable concern in the few states which have expanded their chemical information programs, but there appear to be no problems in these places as well.
B. Preemption Problem Unrealized
Preemption has not been a serious problem for EPCRA. At the very least it has not generated significant litigation. Only one court has addressed the preemption issue, the Ohio Supreme Court, and it ruled that EPCRA did not foreclose additional requirements for hazardous chemical reporting imposed by Ohio. A number of states showed no reluctance in enacting right-to-know law provi sions which were more stringent than those of EPCRA.
C. Small Business Tempest
The small business problem has nagged at EPCRA. As already noted, in the Reagan Administration, soon after the enactment of EPCRA, the SBA urged the EPA to effectively exempt all small businesses from the law's reporting requirements. It is important to note that EPRCA is explicitly constructed to exempt most small businesses from TRI reporting. It does this by excluding facilities with less than 10 employees and those which fall below the chemical activity-based thresholds set at several thousand pounds.
Small businesses cannot be considered categorically harmless toxic polluters. Small facilities may use large quantities of toxic chemicals that pose a significant threat to workers and the environment. Nevertheless, the EPA from the outset yielded to small business concerns by providing them relief in the initial 1988 regulations implementing the TRI reporting requirements. These regulations included a provision to allow "range reporting" for annual toxic chemical releases of less than 1000 pounds, thereby alleviating some of the TRI reporting burden to small businesses.
This modest accommodation from the EPA did not satisfy small business interests. The SBA assistant counsel, who in that capacity in 1988 had urged the EPA to reduce the reporting burden on small businesses, was in private practice four years later and representing a small business coalition seeking exemption from TRI reporting. In 1992, the SBA, backed by a group of small business trade associations, formally petitioned the EPA to waive the annual TRI reporting requirement for small companies that emitted small amounts of toxics, asking the EPA to instead shift from reporting the extent of use of chemicals to actual releases. The SBA specifically proposed that the EPA shift to release-based exemptions for the TRI facilities, exempt reports of individual releases or transfers of 5000 or less pounds for the vast majority of chemicals listed under section 313, and provide separate regulatory treatment for highly toxic or low release volume chemicals.
The SBA argued that these facilities should not have to report because they release insignificant amounts of toxics and pose no threat to communities or the environment. Moreover, the SBA maintained, the exemption would save nearly $331 million annually in compliance costs, reduce the regulatory burden on small businesses, allow the EPA and the state environmental agencies to direct scarce budget and enforcement resources to more significant environmental problems, concentrate TRI reporting on facilities responsible for the vast majority of releases, remove virtually all small facilities, improve the effectiveness and efficiency of the TRI reporting program, and result in major savings to small businesses. The SBA was also concerned about an increasing burden for small businesses because of costly state and federal "piggyback" or "domino" reporting requirements. The SBA contended that if a threshold of 5000 pounds were used to trigger release reporting for TRI chemicals, ninety-nine percent of air releases, ninety-five percent of water releases, and ninety-eight percent of land releases still would be reported, and that the TRI would still capture eighty-five percent or more of the toxic chemical releases but eliminate ninety percent of the reports and nearly ninety percent of the reporting facilities.
The EPA was cool to the particulars of the 1992 SBA proposal, but appeared open to the general idea of finding other options for easing the TRI reporting responsibility. The director of EPA's Toxics Release Inventory staff cautioned that "[a] small business does not necessarily mean a small source."
Not surprisingly, environmental organizations objected to the SBA proposal. Environmentalists do not want less information, they want more. An environmental coalition contended that the TRI exemption would reduce public access to information on the significant contribution to toxic pollution made by small busi nesses. While expressing some sympathy with giving small businesses a break, the coalition urged that the reporting policy in general should go in the opposite direction: expanding, rather than contracting, TRI reporting. The Natural Resources Defense Council (NRDC) claimed that the exemption would complicate reporting and enforcement and diminish both public and government access to the very considerable toxic pollution created by small businesses. NRDC pointed out that the vast majority of small businesses were already exempt from the TRI reporting because the requirement did not apply to facilities with less than 10 employees.
What is perhaps most surprising is that big industry did not side with small business. Like environmental groups, the Chemical Manufacturers Association (CMA) paid lip service to the idea of somehow easing the burden of TRI reporting on small businesses. The CMA, however, opposed the SBA proposal to replace the activity-based or use-based thresholds applicable to manufacturing, processing and other activities with release-based thresholds. The CMA criticized release-based standards proposed to provide the small business exemption as "[s]ignificantly increasing the workload on all businesses by forcing all facilities to [undertake] complicated release calculations, possibly for hundreds of sources . . . ." The CMA also charged that these standards would "[m]ake it difficult for the public, the EPA and the industry to compare future TRI reports with historical data" and would increase the burden on EPA enforcement authorities attempting to audit the accuracy of release-based reports. The states have also objected to release-based standards for small businesses, contending that if companies were exempted from reporting small release amounts, then pollution prevention programs would suffer.
In 1994, the EPA yielded to small business concerns by proposing a rule that has the effect of exempting the vast majority of small businesses from filing Form Rs. The proposed rule called for a higher alternative reporting threshold of one million pounds for facilities with low-level releases, which was defined as less than 100 pounds of the listed chemicals. Instead of filing a Form R, the facilities would file an annual certification that they were covered by the exemption. As has been noted, the use-based statutory thresholds for reporting are 25,000 pounds per year for manufacturing, processing, and importing and 10,000 pounds per year for other uses of a toxic chemical. The proposal exempted an otherwise covered facility from the TRI reporting for any listed chemical it released, or transferred offsite for treatment or disposal, in amounts less than 100 pounds if the facility generated less than one million pounds of all listed chemicals combined.
The effect of the higher alternative threshold standard for low-level releases would be to eliminate 20,500 annual TRI forms submitted to the EPA, or roughly thirteen percent of all annual reports that would otherwise be filed with the EPA. Additionally, the higher alternative threshold standard would partially eliminate reporting for over 10,000 facilities and completely eliminate reporting for nearly 4000 facilities. The EPA analysis showed that such an exemption would reduce the total amount of releases reported to the EPA by .01 percent, or approximately 200,000 pounds out of 4.5 billion pounds of all releases. However, while the loss of information for releases would appear to be relatively insignificant, the same is not true for the loss of information about waste generation that is important to know for pollution prevention efforts. More than 16 percent of the total waste reported to the EPA, up to 6.1 billion pounds, would be excluded by this definition.
The EPA alternate threshold/low-release proposal was a strange hybrid of a use-based/release-based standard. During the nearly two years between the SBA petition and the proposed rule, the only option the EPA had been seriously considering was pure, straightforward release standards. In response to the SBA petition, for nearly two years the EPA had indicated that it was considering four separate release-based thresholds of zero pounds, 500 pounds, 1000 pounds and 5000 pounds for small business relief from the TRI reporting. The EPA's solution was a dangerous compromise, adopting a partial release-based standard with a partial use-based threshold.
The EPA partly justified the proposed new exemption as giving small businesses needed relief without resulting in significant loss of data or environmental protection. The EPA's principal rationale for the exemption appeared to be: (1) that it planned to greatly expand the TRI program by adding over 300 chemicals to the TRI reporting; (2) that this expansion would represent a great expense to businesses and industry; and (3) that to offset the burden the EPA could exempt small facilities and releases to some extent. Behind this rationale was the likelihood that the EPA was under pressure from the Clinton Administration Office of Management and Budget (OMB) to "balance" steps that expanded the TRI reporting with moves that reduced the overall reporting burden on business. The OMB, which must approve EPA regulations, had been under pressure from small businesses to lighten the reporting load under EPCRA.
Environmentalists are the chief critics of exemptions for small chemical releases. They contend that small releases of toxic chemicals can still lead to significant, sometimes enormous, dangers to public health and the environment, and that the true dangers of toxic chemicals are not fully understood. The EPA supported the view that small releases can be harmful in the annual TRI report it released several months prior to issuing the proposed rule. For environmentalists, the only credible release-based exemption would be an exemption set as close to zero releases as possible. Small release exemptions, which relieve large numbers of facilities from reporting, also appear vexing to environmental representatives in light of extensive noncompliance with the TRI reporting requirements by businesses. The EPA conceded that as a result of its small release exemption proposal, some communities would be deprived of the right-to-know about virtually all waste generation data that would ordinarily be captured by the TRI reports. Low-release exemptions are also inconsistent with EPA and other future federal efforts to pursue zero discharge regulatory restrictions for some serious toxic chemicals.
In late November 1994, the EPA adopted the low-release/high-threshold approach in a final rule. The rule retained the one million pound threshold level, but made several changes from the earlier proposal to address some of the concerns of environmentalists and state regulators. The EPA adopted a "total waste" requirement for arriving at the one million pound threshold and dropped what environmentalists called the "recycling loophole" which would have removed from this calculation, and thus from the TRI information gathering, transfers of wastes for recycling or incineration for energy recovery. The final rule increased the low-level release level from the previously proposed 100 pound level to 500 pounds. The EPA indicated the higher release level would result in nearly the same large reduction in the number and proportion of the Form Rs as that contemplated in the original proposal, but there would be a substantial difference and decrease in the amount of data lost with a small-source exemption. The EPA primarily justified the final rule exempting small sources as a means to offset another rule issued the same day which substantially expanded the number of chemicals covered by the TRI reporting.
D. Emerging Concern of Spending
1. Federal Funding
EPCRA spending began inauspiciously and has been subject to a modest degree of uncertainty since. Furthermore, EPCRA requires states and local jurisdictions to administer major portions of the law, and is therefore vulnerable to the rising revolt against unfunded federal mandates. Soon after President Reagan signed EPCRA into law in October of 1986, his administration attempted to deprive it of its own independent line of funding. The Reagan Administration EPA publicly acknowledged in December 1986 that rather than seek a separate appropriation from Congress to fund EPCRA activities, it would subordinate the program to part of the Superfund program and fund it from the appropriations and special taxes used to finance the Superfund.
The Superfund and EPCRA are in fact separate programs. EPCRA was enacted by Congress in the same public law as the Superfund reauthorization, but this was largely a matter of convenience. The irony of the decision by the Reagan Administration EPA to dip into the Superfund to finance EPCRA is that the President almost vetoed the Superfund because of his opposition to a broad-based business tax as a new source of revenue for funding the Superfund. President Reagan philosophically opposed broad-based business taxes to fund pollution programs and he was urged by his OMB, Treasury and Energy departments to use his veto. Reagan bowed to strong public support for passage of the Superfund reauthorization in deciding not to veto it.
The EPA had indicated that it would go ahead with its plan to divert Superfund monies to the right-to-know program unless Congress objected. Key Congressional figures immediately attacked the Reagan Administration's intention to use Superfund revenues to fund the right-to-know program as a violation of the Superfund legislation. This disapproval operated on the premise, as one congressional aide put it, that the Superfund program and the right-to-know program were two separate laws, "like night and day or apples and oranges." Democratic Representative John Dingell, the powerful chairman of the House Energy and Commerce Committee, stated that he was "mystified" by the move, called it a "serious mistake," and noted that Congress intended EPCRA be funded by its own congressional appropriations and that the Superfund could not be treated as a "slush fund" to fund other EPA responsibilities.
Dingell had been pivotal in the passage of the Superfund legislation and he indicated that he would seek congressional appropriations specifically for EPCRA. The EPA alleged it had legal authority to divert the Superfund money to EPCRA, but quickly backed off when Dingell and others in Congress showed irritation. An apparent deal was struck in which the EPA backed off from treating the Superfund as a continuing source of funds for the right-to-know program, in return for a one-time congressional approval for transfer of Superfund monies for the first year of EPCRA's operation in 1987.
Funding continues to be a persistent problem for states and local governments in administering the emergency planning and response activities of EPCRA. Fire departments and other emergency responders have long complained that they lack the training and equipment for emergency response and that this jeopardizes the safety and health of the public, the workers at the facilities, and the emergency responders. LEPCs and fire departments particularly lack financial support, both from the federal government and from their own states.
Lack of funding has had a significant effect on the willingness and ability of states to engage in outreach efforts to help the public to use and understand the TRI data. Neither the EPA nor Congress has been supportive of direct funding to state and local governments to carry out their EPCRA responsibilities. LEPCs believe that both federal and state assistance is inadequate.
The absence of federal efforts to fund the states in carrying out EPCRA responsibilities contrasts with federal funding initiatives for other important federal pollution control legislation which mandates state participation. EPCRA authorized no more than "training grants" to the states, which were suspended by the Reagan Administration in 1988. The EPA initially proposed sharing the fines it received from enforcing EPCRA, but it probably lacked the authority to do so and did not follow through.
President Reagan signed EPCRA into law. His last budget before leaving office proposed $4.9 billion for the EPA. The EPCRA program was proposed to receive only $21 million of that amount. The EPA's actual spending to carry out its EPCRA responsibilities have been relatively modest ever since. Environmentalists have long complained that EPCRA has not been adequately funded by the federal government.
2. State and Local Funding
States as well have had problems funding EPCRA responsibilities. At least thirty-two states provide no funding to local communities for LEPC activities, and the emergency response planners in these places often must rely upon donations of equipment to do their work. Only slightly more than half the states have reported legislative appropriations for their SERCs.
The funding that the states do provide is fragile. For example, California, which comprises one-fifth of the nation's population and was one of the first states with right-to-know legislation that preceded the federal law, had funding for its right-to-know program threatened by a poor economy and budget shortfall. Several states, such as Missouri, where legislative appropriations have not been adequate to administer right-to-know legislation, have turned to imposing new industry fees to support EPCRA activities.
E. Enforcement Nothing to Fear
EPCRA has not given rise to a great wave of government and citizen enforcement and litigation. What has happened is that there is more to fear from noncompliance than enforcement and subsequent substantial punitive results.
The EPA has characterized the TRI, which annually compiles information on the release of toxic chemicals by manufacturing facilities, as one of the "cornerstones" of EPCRA. If this is true, that cornerstone is somewhat cracked.
Significant TRI reporting undercompliance has continually plagued EPCRA from its inception. The EPA revealed that of the nearly 30,000 companies it believed were subject to the TRI reporting in 1987, the first year for EPCRA reporting, more than one in three companies, or around 10,000, failed to report. The percentage of facilities required to report under the TRI program, but which have not reported, has consistently hovered around the thirty percent range ever since. Almost four years after the passage of EPCRA, the EPA admitted enforcement was a problem for the TRI.
The quantity of data lost due to nonreporting is unknown but could be substantial, with one estimate speculating that in TRI reporting's first year, up to ninety-five percent of the total emissions escaped reporting. In some manufacturing sectors, compliance appears to be particularly bad. The rate of noncompliance is worse in some states than in others.
Undercompliance also afflicted other portions of EPCRA. The law required communities, as represented by their LEPCs, to submit emergency response plans by October 17, 1988. About forty percent of 3808 LEPCs required to submit these plans failed to meet this deadline, with great variation in compliance across the nation for better or worse.
The interest groups who have been concerned about EPCRA undercompliance have primarily blamed the EPA for the problem. Congress and the environmental community were among the first to show concern and find reasons for low rates of industry, state and local compliance. They placed a substantial part of the blame for inadequate local emergency planning compliance on the EPA's conflicting policy position: on the one hand, that the states bear primary responsibility for enforcing this area of the legislation, and on the other hand, refusing to provide adequate funds to the states and local governments for carrying out their emergency planning duties. The EPA's implementation and enforcement of toxic chemical release reporting has been faulted by critics as inadequately funded.
The most complete and convincing assessment of underreporting can be found in a 1990 General Accounting Office (GAO) study which focused upon significant problems in the EPA's enforcement of the TRI program. The GAO regarded most non-reporting as unintentional and concentrated among small and medium size manufacturing facilities who were unaware of the reporting requirement.
However, the GAO criticized the EPA for inadequate enforce ment efforts concerning the TRI non-reporting and found them partly to blame for this problem. The GAO faulted the EPA for its inefficient strategies to identify non-reporters. The GAO contended that the EPA did not screen facilities before undertaking inspections and that the failure to do so led to noncompliance. The GAO agreed with the EPA's concern over the failure of EPCRA to grant it explicit authority to inspect facilities for compliance, unlike other federal pollution control statutes.
The GAO found the EPA slow to take enforcement action even after conducting inspections and finding facilities were not reporting the TRI releases. Moreover, the GAO noted that the EPA was slow in resolving the few complaints it did initiate. The GAO determined that the EPA's delays in issuing civil complaints were key reasons why so few enforcement cases were resolved. The GAO stated that delays in the EPA's settlement process also contributed to a backlog of enforcement cases.
The GAO not only found fault with the EPA's enforcement against non-reporters, but also with the EPA's failure to undertake enforcement against late reporters of emission data, which numbered in the thousands. At the time of the GAO report, the EPA simply had not devised a policy for taking enforcement action against late reporters. It is evident that the EPA dedicated scant resources to the early enforcement of the TRI reporting, providing only two full-time staff members for this purpose in each of its regions.
Government enforcement of environmental laws requires the ability to investigate, and this, in turn, is dependent upon adequate inspection authority. The EPA very early on conceded this to be a hole in EPCRA enforcement capability because the legislation does not expressly authorize either the EPA or the states to enter and inspect facilities that are suspected to be out of compliance with the law's reporting requirements. The EPA believed that it had strong implicit inspection authority under the toxic chemical release reporting provision of section 313 because the reports were sent directly to the EPA. However, for this provision and the other EPCRA reporting requirements, the EPA indicated that it might have to rely upon other federal laws to conduct inspections. It indicated that information gathered by states under their own laws could be used in an EPA enforcement action under sections 311 and 312 for hazardous chemical reporting and that close cooperation between the states and the EPA was needed to accomplish this.
2. EPA Judicial and Administrative Enforcement
Fear over frequent federal enforcement and heavy judicial and administrative penalties so far has not turned into reality. When compared with the scale and penalties associated with federal enforcement of other environmental laws, EPCRA has a long way to go.
The first TRI reports were due on July 1, 1987. By this date 19,278 manufacturing facilities submitted 74,152 individual chemical reports. Nearly a year and half later the EPA issued its first complaints for failures to submit toxic release information against a mere twenty-five companies, a seemingly inconsequential number given the huge number of facilities covered by EPCRA. This was an unimpressive first effort by the EPA at enforcement.
The EPA estimates that ninety-five percent of its enforcement actions under all environmental laws result in settlements. EPCRA enforcement appears to follow this overwhelming tendency toward settlement. EPCRA violators are inclined to settle because there is little incentive for them to litigate: the costs of furnishing the required reports and notifications are relatively low compared with potential penalty assessments. The EPA has shown an increasing tendency to accept settlements that allow companies to undertake pollution control measures in lieu of hefty fines.
Federal enforcement of EPCRA has covered all the reporting requirements. The typical EPCRA penalty ranges from several thousand to several hundreds of thousands of dollars. EPCRA follows the EPA pattern for other federal environmental laws where most enforcement is via administrative action rather than criminal or civil judicial actions. The EPA acknowledges that a penalty is likely to be higher in a judicial case than in an administrative case.
EPCRA is not only an environmental law which the EPA can enforce but it also can be and is used by the EPA as a tool to enforce other federal environmental laws. The TRI has been used by the EPA as one of the main tools to spot violators of the hazardous waste dumping requirements of the Resource Conservation and Recovery Act. The EPA has announced that it will use the TRI as an investigatory instrument, taking information from the inventory, along with its other databases, to target hazardous waste sites for inspections.
Standing alone, some of the federal enforcement statistics for EPCRA would seem at first glance to be impressive. The EPA has so far tabulated enforcement statistics for EPCRA's TRI program from calendar year 1988, the baseline for enforcement numbers, to 1993. During this period, the EPA issued 832 complaints for TRI violations, almost all for non-reporting, undertook 4064 inspections and proposed penalties in excess of $40 million. There are examples of significant EPA monetary settlements of EPCRA actions. The EPA has consistently pursued some degree of monetary penalties for EPCRA violations. According to the EPA, EPCRA's TRI program is the "largest regulatory net ever cast."
Despite the fact that EPCRA's coverage extends more widely than other environmental laws, its enforcement is minuscule compared to theirs. EPCRA enforcement, measured in terms of the collection of penalties and fines, constitutes less than one percent of total EPA enforcement of its various environmental statutes. In 1994, the EPA collected a record $165.2 million in fines, $128.4 million in civil penalties and $36.8 in criminal fines for all the environmental statutes it enforces. EPCRA fines reached a record year in 1994 as well, with the EPA announcing $26 million in proposed fines and $10 million in collected fines.
However, the typical EPCRA penalty, which ranges from several thousand to several hundred thousand dollars, is low compared to the multi-million dollar amounts which occasionally occur with other federal environmental laws. EPCRA settlements pale in comparison with those achieved under other federal environmental laws. EPCRA enforcement actions and penalty collections by the EPA, while seemingly significant in themselves, appear to make up only a small portion of total EPA enforcement and penalties. Proposed penalties of the kind the EPA touts for EPCRA can be mis leading because the EPA has been criticized for actually settling cases for low amounts. Moreover, though the EPA has announced significant settlements, it reportedly has a checkered record in pursuing and collecting the penalties agreed upon in settlements.
The EPA proclaimed soon after EPCRA's enactment that enforcement actions should be aimed primarily at larger companies because they present the greatest threat to public health. They also present the greatest sources for large penalties. Reports of EPCRA enforcement actions do not reveal that the EPA actually followed up on a policy which targeted larger companies.
The EPA's enforcement of EPCRA has steadily improved during the Clinton Administration. In mid-1993, the EPA announced the wholesale issuance of administrative actions against thirty-seven companies for alleged non-reporting of TRI data, with nearly $2.8 million in potential fines.
The Clinton Administration contends that resources in the EPA have been shifted over the last several years toward beefing up investigative staff for discovering and prosecuting environmental crimes like non-reporting and false reporting under federal laws. Nevertheless, criminal enforcement of EPCRA is monumentally unimpressive. By late 1994, the federal government secured only one criminal prosecution under EPCRA.
The EPA enforcement of EPCRA has a long way to go for the "largest regulatory net ever cast" to catch the big fish caught by other environmental laws. In sum, while the EPA's EPCRA regulatory net may be wide, it appears not to be cast out often enough to make any significant catches.
3. State EPCRA Enforcement
With the exception of toxic chemical release reporting under section 313, most of EPCRA's mandates are supposed to be carried out by states and localities. Despite this fact, EPCRA does not mirror other federal laws in which the vast majority of environmental enforcement actions and highest total of penalty collections are on the state level rather than the federal level. The secondary role that states play in EPCRA enforcement compared to the federal government is opposite the usual primary enforcement role they play for other environmental laws where responsibilities are delegated to them.
States have shown forbearance in enforcing community right-to-know and pollution prevention legislation. States may bring citizen suits against EPCRA violators but these actions appear rare. Most states have come to rely upon the EPA to handle enforcement of the key TRI program. Only thirteen states have statutory authority to take enforcement action against companies that do not file TRI reports; and generally, states with enforcement authority fail to exercise it. The EPA acknowledges that state and local governments can bring enforcement actions against companies that do not comply with the TRI reporting requirement law, but they usually fail to do so. In fact, the states have begged the EPA to take on this responsibility.
The EPA does not generally have high regard for state enforcement of environmental programs. In EPCRA's early days, the EPA declared that the development of working relationships between the EPA and the state emergency response commissions were central to EPCRA enforcement. However, the EPA has not appeared to have gone much further than merely stating this recognition.
Implementation and enforcement of EPCRA by the states is dependent upon, in large part, the states' desires and abilities to fund their EPCRA responsibilities. Budget-cutting by state governments across the nation calls into question the prospect of effective and sustained state enforcement of EPCRA. In sum, facilities do not have to generally fear state enforcement of EPCRA.
4. Toxic Torts and Citizen Suit Enforcement of EPCRA
Citizen suits did not become the significant EPCRA enforcement mechanism that industry feared, nor has the legislation come to be an aid to toxic tort litigation. Most of the modest number of citizen suits have been brought by relatively small environmental organizations.
The OMB Watch, the nation's only public interest group that principally focuses on EPCRA, predicted during the early stages of the law that community and environmental groups were not likely to engage in a great deal of citizen suits. It recommended that citizen suit litigation be used selectively to set precedents in key areas. This has not in fact occurred.
The best known national environmental groups have not extensively relied upon EPCRA citizen suit enforcement. An overwhelming number of citizen suits have been undertaken by lesser-known national environmental organizations and regional groups. Environmental organizations reported to have instituted citizen suits include the Atlantic States Legal Foundation (ASLF) located in Buffalo, New York, Environmental Action and Trial Lawyers for Public Justice headquartered in Washington, D.C., New Jersey Public Interest Research Group, Citizens for a Better Environment in Wisconsin and Illinois, the Ecology Center of Michigan, and the Delaware Valley Toxic Coalition of Philadelphia. Few citizen suits have been brought by individuals.
The first citizen suit against a corporate violator was filed in July 1990 by the ASLF. Very little reported case law has been generated by EPCRA. In general the sparse EPCRA case law reflects the small degree of enforcement by government and citizens alike. Most of the case law has resulted from the citizen suits and the ASLF has initiated most of the citizen suits. The most active federal forum for citizen suits and all other EPCRA litigation has been the Western District of New York—possibly due to the Buffalo-based ASLF's location in this district.
The ASLF has achieved notable settlements and awards. Its victories include not only monetary penalties, but also court orders and settlement agreements which creatively require facilities to gather and report information over and above the minimum requirements of the statute and to contribute money, property or services to environmentally beneficial services, such as environmental groups or state and local bodies administering EPCRA. But EPCRA citizen suit settlements and awards of the ASLF, or anyone else, are far below the stratospheric level achieved in citizen suits brought under other environmental laws.
V. FEAR OF EMBARASSMENT
Only a few industry members anticipated what they should have feared most about EPCRA. This was the Jeffersonian ideal of the power of information in democracy. EPCRA started out as an obscure, minor environmental law. However, the TRI attracted much attention. The EPA and citizen groups, in their efforts to quell toxic emissions, have used information that the TRI reveals as a potent weapon.
The TRI has spawned extensive grassroots agitation, numerous governmental and environmental organization reports, significant regulatory and legislative actions, major industry initiatives, and wider public consciousness about massive toxic releases and the need to reduce them. The TRI confirms the observation that more information on an important public issue tends to lead to public pressure which can lead to reform. One commentator, referring to the TRI, stated it amounted to "regulation by information." Another stated, perhaps more cleverly, that the TRI data has lead to "regulation by embarrassment."
A. The First Shocking TRI Data
Every year the EPA issues a thick national report which compiles and summarizes the TRI data which it receives from manufacturers. The report analyzes which states and companies are releasing and transferring chemicals and the amounts and types of releases and transfers. The report also examines information on the prevention and management of toxic chemicals in waste and compares current data on toxic chemical releases and transfers with similar data from previous years.
The EPA released its first report in 1989. This report reviewed 1987, the first calendar year of reporting under the TRI. Prior to the EPA's first report, only a few environmentalists expected significant or revolutionary implications for EPCRA. A few industry members thought that EPCRA could become a public relations nightmare and advised manufacturers to gear up for damage control and put a good face on bad news. Those who expected the TRI data to have a stunning effect turned out to be oracles.
The country was shocked when the first national report revealed that manufacturers released more than twenty billion pounds of toxic chemicals into the environment in 1987. The EPA announced that these results were "startling" and "far higher than we thought was going to occur." One of the principal authors of EPCRA, Senator Frank Lautenberg, Democrat from New Jersey, declared that the data was "staggering" and showed that "we were assaulting the environment with toxic emissions into the air, water and ground."
The first national report revealed eye-opening data on the toxic releases and transfers into the air, land and water, the top releasing states, the substances, and the industry groups. In subsequent national reports, the EPA made it a practice to list the top releasing companies and facilities, disclosing huge releases and transfers for individual plants and parent companies. These reports continued to show enormous toxic releases, transfers, and waste generation.
A variety of groups have used the TRI data extensively. They can be roughly divided into environmental and citizen organizations and activists, governmental agencies and legislative bodies, the press, and industry. The TRI data has had a profound effect on all these groups.
B. Environmental and Citizen Organizations and Activists
The TRI data is relatively easy to obtain and use. While the facility preparing a TRI form is not required to provide a copy to a member of the public, states and the EPA, upon request, must make the TRI data release information available to the public. The TRI data is accessible to the public on a national computerized database, as well as by other means. While relatively few individuals have utilized EPCRA, environmental and public interest organizations use the law extensively.
Environmental and public interest groups often perform the role of proxies for the environmental concerns of the public. Environmental organizations around the nation have formed a coalition based upon the right-to-know law and, in the spirit of the legislation, are connected via a computer network. These groups have become some of the most prolific users of TRI data. Environmental and public interest organizations have produced scores of secondary reports by using the TRI data. This data is directed towards educating the public and policy makers about toxic pollution issues and pressuring industry to reduce the generation of toxic substances. These reports have covered local, state, regional, national and international settings, and polluters.
Often following on the heels of the EPA's annual national TRI reports, environmental organizations have produced reports publicizing the names of top polluting facilities, industries, chemicals, and states in an effort to invite public and regulatory pressure for toxic substance reductions. Some of these public interest reports have questioned the EPA and industry claims of concern and success for pollution prevention. Reports using TRI data have been used to address one of the newest areas of environmental concern, environmental justice, which is concerned with the reputedly dispropor tionate burden for environmental and public health impacts borne by low income and minority communities.
One of the most important uses of EPCRA data by grass roots citizen and environmental groups has been to induce or compel companies and governmental bodies to mitigate or eliminate the generation, release, or impact of toxic substances. Environmental organizations have organized campaigns to publicize companies' TRI chemical releases.
EPCRA helped a citizen group in California convince IBM to phase out use of ozone depleting CFCs; was combined by a group of activists with two progressive state right-to-know laws to combat toxic exposure in Arcata; helped citizens in Richmond to demand that companies develop chemical accident prevention plans; empowered a citizens group in San Diego to advance a community planning and economic development proposal for land-use planning; and, in Contra Costa County, helped citizens convince the state to affirm local committees' right to obtain chemical hazard information for accident prevention. In Ohio, the TRI data provided the weapon for a citizen group from the town of Lima to obtain funding for the first state airborne toxic substances monitoring project; helped an Akron group to obtain BF Goodrich's commitment to a seventy percent reduction in toxic airborne emissions; and, in Cuyahoga County, resulted in companies turning to less dangerous chemicals to reduce hazards.
In Texas, TRI data was used by a hunger striker to spotlight a major polluter and win recognition of new pollution concerns. EPCRA data was the basis for plume mapping that revealed a serious ammonia release danger in Cloverleaf, Texas. A Berlin, New Jersey citizen group used the TRI data to induce a local company to adopt a chemical hazard accident plan. In Asheville, North Carolina, the TRI data assisted in obtaining funding for a water treatment plant, and statewide data spurred the passage of airborne toxic substances legislation. Similarly, the TRI data for Louisiana facilitated the passage of a bill to address previously unregulated airborne toxic substances emissions.
In Massachusetts, activists used the TRI data to win a pledge from defense contractor Raytheon to replace ozone depleting chemicals with safer substitutes, and the statewide data provided ammunition for environmentalists in the successful effort to secure the enactment of a far-reaching state toxic substances reduction law. In Oregon, the TRI data was used by environmentalists to spur the enactment of a strong toxic reduction statute. In New York City, the TRI data helped residents of a neighborhood to win a twelve-year battle for cleaner air, while citizen groups in the state have successfully utilized citizen suits to enforce compliance with the TRI reporting. Labor union and community groups in Northfield, Minnesota, won a reduction pledge from a local company for worker and community exposure to methylene chloride. In Henderson, Kentucky, citizens used a trade secret challenge involving the TRI data to highlight important community environmental issues.
Environmental organizations have organized campaigns to publicize companies' releases of TRI chemicals. The TRI data, as well as other EPCRA information, is the basis for "good neighbor" agreements which some environmental organizations have urged citizen groups to negotiate with local facilities for the purpose of reducing or eliminating toxic substance generation and hazardous chemical risks to plant employees and communities.
C. The Press and TRI Information
The press is a major user of the TRI data and has used it to provide reports about the status of toxic pollution nationwide. Press stories come in two forms: overviews of the TRI data after its yearly release, or in-depth analysis of specific locations or companies.
The very first EPA national annual report on the TRI data attracted national press attention, beginning with a bang in 1989 when the widely distributed national newspaper, USA Today, used the 1987 calendar year data freshly released by the EPA for a special three-day series about toxic pollution that reached two million daily readers. The first inventory results also received national television coverage. Media stories based upon annual reports on the TRI data published by the EPA and the states or based on studies and reports issued by environmental organizations for advocacy use have now become a yearly press ritual.
The TRI, a computer database, has contributed to making environmental journalism more mature and responsible. The TRI is part of the advent of computer assisted reporting which has enabled environmental reporters to go far in furnishing in-depth information to the public. Journalists have not been entirely independent in using or accessing the TRI data. They often depend upon citizen and environmental organizations as a source for acquiring and interpreting the TRI data. The stream of information on toxic chemicals is particularly helpful in providing continuing education for reporters, and this in turn makes them more responsible to their audiences. Newspapers and broadcast media have based many investigative stories on the TRI data. This data has provided journalism with timely information, a meaningful context to evaluate toxic pollution, an understanding of tools for illustrating chemical hazards, and a foundation for communication with local industry officials and plant representatives.
D. Impact on Legislation and Regulation
EPCRA has been said to reveal the success or failure of environmental laws and regulations. This has included holding a mirror up to EPCRA itself.
Environmentalists contend that despite the original TRI list of over 300 plus chemicals covered by EPRCA, approximately ninety-five percent of all toxic chemical releases still escaped reporting. Environmentalists note that many substances listed as toxic or hazardous under other federal environmental laws, including the Clean Water Act, Safe Drinking Water Act, and RCRA, were not covered by EPCRA. Conversely, the release of the TRI data made it apparent that large quantities of toxic chemicals put into the environment were not being controlled by federal laws meant to regulate toxic pollution. Most of the TRI releases are into the air, but as of 1992 only two were regulated as toxic air pollutants by the Clean Air Act nearly twenty years after that statute was enacted.
The TRI data has been credited with stimulating actual and proposed federal and state legislation and regulation for more stringent pollution monitoring, control and prevention. EPCRA itself was amended by Congress with the Pollution Prevention Act of 1990 to include new data elements on source reduction and recycling to the TRI, starting with the 1991 calendar year. This was the first major expansion of EPCRA. It was followed by other significant expansions of the law's coverage. The second such expansion occurred with President Clinton's 1993 executive order requiring federal facilities to submit the TRI reports, which environmental organizations had persistently sought.
The third expansion came in late 1994 with another Clinton Administration EPA rule, which added nearly 286 more chemicals to the TRI list for industry reporting, nearly doubling the number of substances manufacturers and users must report in their annual inventory reports. This substantial broadening of coverage of the TRI reporting had long been urged by environmental groups and was depicted by the Clinton Administration EPA as the first of three phases for expanding the TRI even more. Nearly half of the new chemicals added to the list were pesticides that were regulated under the federal pesticide law, FIFRA, but that had not been placed on the original TRI list. While expansions of EPRCA are significant, even more extensive and rigorous changes have been occasionally proposed in Congress that have served to stimulate changes which eventually did in fact occur.
The United States TRI is the first substantial mandated environmental inventory to be introduced by a national government. This pioneer pollutant inventory is being copied by other countries. In its home country it has been proposed to be used or has been actually used for international applications.
Other countries with established or pending inventories include Australia, the Netherlands, Norway, Canada and the United Kingdom. The Organization for Economic Co-operation and Development (OECD), as a follow up to the 1992 United Nations Conference in Rio, is developing guidelines on establishing inventories for the nations of the world. The United States EPA has ordered com panies that operate maquilladora factories inside Mexico to report their toxic chemical pollution. The TRI has come to be seen as a model by the United States and other nations to monitor global climate warming gases.
EPCRA in general, and the TRI in particular, have been catalysts and the basis for a variety of significant legislative, administrative, and regulatory initiatives by the states and the federal government. Chemical release data compiled by the EPA as part of its TRI inventory has been the driving force behind laws, proposed legislation, and rule-making efforts on the federal level.
The enactment of the Pollution Prevention Act of 1990 has already been mentioned. However, the Clean Air Act Amendments of 1990 are collectively the single most important federal law influenced by the TRI. The TRI data showing massive releases of toxic chemicals in the atmosphere confirmed the woeful inadequacy of federal control of toxic air pollution. The first annual TRI report covered over 300 toxic chemicals for 1987, providing a sharp contrast with the fact that by this time the EPA had used its authority under the Clean Air Act to regulate only seven air toxics in nineteen years. The TRI data showed nearly 2.7 billion pounds of toxic air releases, with nearly eighty-eight percent, or 2.3 billion pounds coming from twenty-five chemicals. Only one chemical regulated by the EPA as a toxic air substance, benzene, was among the top twenty-five, and it ranked twenty-first. The 1987 TRI data revealed air releases totaling 361.5 million pounds nationwide for eleven cancer-causing air pollutants which the EPA had promised to regulate since 1984, but failed to do so. The Clean Air Act Amendments of 1990 grabbed over 170 chemicals from the TRI list and directed the EPA to regulate them as air toxics.
Federal farm legislation enacted in 1990 adopted a public right-to-know provision for agricultural pesticide use. Federal rule-making and proposed legislation linked to right-to-know has been undertaken for the Clean Air Act, Clean Water Act, CERCLA, Safe Drinking Water Act, and RCRA. Federal agencies, particularly the EPA, have used the TRI data to produce reports, guides and reviews focusing on specific aspects of toxic releases and risks. The TRI data is extensively used by EPA headquarters and regional offices, often in conjunction with other EPA databases, in the initiation of new programs and the implementation of existing ones concerned with prevention initiatives, compliance reviews, inspection targeting, enforcement actions, and risk screening.
The TRI data forms the backbone of the EPA's principal pollution prevention initiative which was mounted in 1991 and labeled the "33/50 Program," so-called because it asks companies to voluntarily reduce emissions of seventeen high-priority TRI chemicals thirty-three percent by 1992 and fifty percent by 1995. The 33/50 program appears to have been fostered by the Bush Adminis tration's EPA's embarrassment following the release of the second TRI in 1990. It made public the massive releases of toxic chemicals that went un- or underregulated. The 33/50 program fit perfectly with the Bush Administration's philosophy of substituting corporate volunteerism for regulation as the preferred means to achieve pollution reductions.
The Clinton Administration's EPA appears to have enthusias tically embraced the philosophy of the 33/50 program and claims the program has achieved significant and admirable progress. Environmental organizations, however, contend the program is a sham whose design is badly flawed, whose reported results are suspect, and whose existence was created principally for the purpose of avoiding the use of tougher, more effective mandatory pollution prevention regulation.
Like the federal government, state governments have made worthwhile use of the TRI data. States use the TRI data to produce reports and reviews focusing on specific aspects of toxic releases and risks, and many states maintain their own databases and publish hard copy analyses of the releases within their borders. The TRI program has had a significant impact in spurring state pollution control and prevention legislation, strengthening existing programs, and aiding in the development of new regulatory and program initiatives. At least fifteen states have enacted pollution prevention and reduction laws, some of them roused into action through the efforts of public interest groups using the TRI data to influence legislative action.
For existing state pollution control and prevention programs, the TRI data has been used in improving and toughening permit programs and for enforcing other major environmental programs. The TRI has been applied in Ohio to determine if additional pollutants should be included in water pollution discharge permits; in Connecticut to decide if additional controls are necessary for discharge permits; and in Wisconsin as part of the information considered in facility audits and permits for water pollution discharges.
The TRI is used as an enforcement tool by helping to identify pollution control targets that were not apparent through conventional emissions information. It has been applied to cross-check reporting facilities with other environmental databases to select facilities for inspections and compliance under other environmental statutes.
In addition to strengthening existing regulations, the TRI data has been used to develop and inspire a new wave of environmental regulation and improvement programs. At least six states have used TRI data for environmental justice projects. States have used TRI data for identifying sources for further air toxics regulations, veri fying emission inventory data from other programs, determining point source and fugitive air emissions for target chemicals, and prioritizing air toxics and ground water quality activities. State agencies have used the TRI data to screen for potential health and environmental risks posed by toxic chemical releases and transfers. They have also used the TRI to target technical assistance to TRI facilities. The federal TRI program has encouraged states to undertake additional right-to-know programs and initiatives meant to alert the public about toxic releases and transfers within their borders.
E. Effect on Industry
The TRI is not just a reporting measure, but it is also a revelation of the extent of the toxics problem. It has become "probably the most significant measure of industry's overall environmental performance and progress in reducing wastes and emissions" as well as an important indicator of the responsiveness of companies to environ mental and human health issues. In many cases, the TRI shows the astonishing extent to which industries use our environment as a dumping ground.
A major early fear of some in industry was that once released the TRI data would lead to a public outcry and this would eventually lead to greater regulation. The law was called a "real sleeper" which could "haunt" industries handling chemicals. Soon after EPCRA was enacted, and before the first TRI data would be publicly released, an official with the Bush Administration EPA advised industry to conduct a public relations campaign to convince the public about progress they have made and would continue to make to reduce discharges. The head of Du Pont offered public relations as a tactic to "offer some assurance" to the public "that the problem [was] not of crises proportion."
The TRI has had several impacts on industry. Industry is one of the largest, if the not the largest, user of the TRI database. There is a rising trend in major corporations of issuing environmental progress reports, similar to stockholder reports, but focusing on pollution, to counter adverse publicity that might be caused by their annual toxic release data. The most important impact is that public availability and disclosure of inventory data has motivated industry to promise to meet sharp pollution reduction goals in well-publicized campaigns. They have done this to fend off public outcry and the implications which come from it.
From the very first year that the TRI data was released, 1989, the data has been a significant prod to industry to cut back emissions. The current EPA head says that it serves "as an eye opener to lots of CEOs" who find themselves embarrassed by the bad publicity created by the findings of the TRI reports. Monsanto, for instance, was revealed by the first inventory results to be a top air polluter. As its vice-chairman noted, "[w]e knew the numbers were high, and we knew the public wasn't going to like it." Thus, on the eve of the first national release of the TRI data, Monsanto pledged to cut its releases of inventory chemicals by ninety percent of its 1987 levels by 1992.
The TRI has goaded industry groups to create new or improve existing pollution prevention programs, many patterned after the EPA's 33/50 program, by using voluntary partnerships with federal, state, and local governments. In effect, the TRI has amounted to "regulation by information" for industry.
Perhaps the best known voluntary initiative is that launched in 1988 by the Chemical Manufacturers Association (CMA) called "Responsible Care." The EPA's 33/50 program was patterned after Responsible Care. The CMA called Responsible Care the most ambitious and comprehensive environmental improvement effort ever undertaken by industry and claimed all 184 of its members had committed to it. Among other things, the CMA promised to go well beyond existing laws to reduce pollution and to fling open plant gates to inform and conduct dialogues with the public.
The head of CMA admitted "Responsible Care was launched for one basic reason: the industry had no choice." He noted that incidents like Bhopal had plunged public trust of the chemical industry to "dismal depths," with CMA's own surveys showing the public ranked the chemical industry behind only the tobacco industry among the top threats to public health and the environment. Responsible Care is thus not voluntary pollution reduction done for altruistic purposes, but is rather primarily pre-emptive public relations seeking to avoid mandatory regulation which the public might demand if chemical data was not interpreted in the manner the chemical industry wished. In 1987, after the passage of EPCRA, a major chemical company executive heading CMA's Title III committee urged chemical companies to put the proper spin on the TRI data the first time it was to be released to the nation to counter a "chemophobia" reaction from the public that might lead to more broad-scale environmental regulation for industry.
It is apparent that public knowledge about the TRI emissions has led to very real efforts at changes in industrial practices for the purpose of reducing toxic releases and transfers. Environmentalists, however, are cynical about the motives behind efforts at cor porate volunteerism and the effectiveness of results claimed by industry. Companies which make promises to reduce pollution out of fear of bad publicity and harsher regulation are not really acting voluntarily. They are capitulating to not just regulation-by-information but to regulation-by-embarrassment.
The CMA member companies constitute more than ninety per cent of United States chemical company production and the chemical industry comprises by far the largest industrial sector for TRI releases and transfers. The CMA claims reductions in toxic chemical releases from the chemical sector reflected in the TRI data are real and attributes them to massive investment in pollution control expenditures due to increased public accountability imposed upon the industry by the TRI.
Environmentalists have called reductions in the TRI releases and transfers, claimed by the EPA and American industry, "phantom," contending that most of the largest decreases in toxic emissions are the result of changes in reporting requirements, analytic methods, and production volume, and not from real pollution prevention or abatement. Five years after its celebrated pledge to cut by ninety percent its toxic releases to the air, Monsanto claimed it achieved its goal. But a brief report from environmental groups claimed that paper recalculations were the source of some emission declines. The Citizens Fund contacted fifty top waste generating facilities in the chemical industry to gauge their progress in preventing pollution. The head of the group claimed that twelve of the fifteen lowest ranking facilities were operated by CMA members and called the Responsible Care campaign ineffective. Union Carbide, a CMA member, has claimed it searched for and found ways to reduce its TRI releases; but, cross-checking by environmental groups of the company's releases reported under the nation's hazardous waste law, RCRA, make this claim suspect.
Part of the Responsible Care campaign was a pledge that chemical companies would open up the plant gates and answer citizen questions about toxic chemical use and accident prevention. A study by another environmental group called this pledge into question by showing plant doors in many instances remain closed.
Many CMA members may very well be sincere in their commit ment toward the Responsible Care campaign. It is clear that this trade association cannot guarantee every company in the chemical industry will keep the pledge of openness to the public. It is likewise clear that the CMA cannot keep individual members from going to substantial lengths to subvert this pledge. For example, Ashland Oil, which claims to subscribe to the principles of Responsible Care, has been accused of surpressing publication of a year-long investigation of serious, long-standing pollution at one of the company's facilities by the official magazine of the American Chemical Society, of which Ashland is a member.
Obscure as it was, there were neither great expectations nor great fears about EPCRA when it was enacted. Most of the relatively small concerns about the legislation have not been realized. The few who did fear the power of information fostered by EPCRA, and particularly the Toxic Release Inventory, proved to be right. EPCRA does not attract the same attention or resources as more notable federal pollution laws, but it created a quiet revolution with its effects on the public, regulators, legislators, press, citizen groups, and public consciousness in relation to toxic chemicals and the environment. The most important impact of EPCRA is that it has firmly established and justified the principle that members of the public have a right-to-know about emissions and their risks. The public's right-to-know about toxics released into the environment is now widely accepted. The pressure of public exposure on government and industrial performance has been positive, leading to actual or promised environmental improvements through voluntary cleaner production and pollution prevention initiatives, even though this has avoided direct regulatory measures environmentalists generally trust more.
While the very real success of the toxic right-to-know provision of EPCRA was not anticipated during the early stages of life for the program, continued future success is by no means assured. The current Republican Congress has made emasculating environmental and health and safety regulation one of its premier goals in the name of regulatory reform, and several bills meant to fulfill this purpose might end right-to-know as we know it. These proposals have both the intent and the effect of subjecting governmental communication about chemical risks and exposure to paralyzing review and delay. These efforts reverse the momentum from the public's right to know more about toxic substances to knowing less. The chemical industry is in league with those in Congress who wish to roll back the public right-to-know about toxics. Prior to the last election, when it appeared that it would have to live with a robust and expanding TRI program, the chemical industry tried to put the best face on the bad news revealed in the TRI findings and gave the impression it wholeheartedly embraced the program. This is no longer the case.
Two types of legislation have emerged which threaten the very successful TRI program. The first is an indirect assault on the TRI. That is, legislation which is a broad attempt at reducing and hampering all federal regulation, and which happens to encompass and harm the TRI program in the process. The other is the direct assault on the TRI, the legislation that specifically intends to hurt the TRI program.
One kind of indirect assault which would have a profound effect on the TRI is the regulatory moratorium legislation promised by the Republicans as part of the Contract with America campaign. This effort started out as a proposal for a harsh regulatory moratorium and turned into one for a more modest opportunity for a legislative veto of federal regulation.
In February 1995, the House passed a one-year moratorium on virtually all federal regulations retroactive to November 9, 1994, and sent the measure to the Senate. If this comprehensive moratorium had become law it would have stalled or blocked the EPA's addition of 286 chemicals to the TRI list. The Senate took a different approach, in late March, voting 100-0 to flatly reject a comprehensive moratorium and instead adopted a congressional layover measure which used a 45-day time period during which Congress could scuttle any new regulations.
In a surprise move in early June 1995, the House took up and passed the Senate bill but substituted the language of the comprehensive moratorium it first wanted. This was a political maneuver meant to lead to a House-Senate conference in which the House proponents of the moratorium hoped to prevail in a final bill adopting the moratorium instead of the layover. Senators Carl Levin (D-MI) and John Glenn (D-OH) have vowed they will fight the regulatory moratorium and try to stop a House-Senate conference on the subject with a procedural floor fight in the Senate.
Another major indirect attack on the TRI found in the regulatory reform legislation of the Contract with American agenda seeks to impose an extensive process of cost-benefit analysis and risk assessment upon federal regulation. The chief threat to the TRI is the risk assessment measure which would require that a risk assessment be taken before any federal agency adopts a major health, safety or environmental regulation, and that this assessment justify the regulatory action.
In March 1995, the United States House of Representatives passed the Risk Assessment and Cost-Benefit Act of 1995. The key Senate counterpart for risk assessment legislation, the Comprehensive Regulatory Reform Act of 1995, was introduced by Senator Dole, which is in most respects similar to H.R. 9. The House and Senate bills both would subject major federal rules to a costly, time-consuming, possibly industry influenced risk-assessment process, and easy legal challenges. This would clearly hobble, if not altogether prevent, any meaningful future expansion of the TRI.
These two bills, S. 343 and H.R. 9, would require that any major federal regulation, defined as one which would have an economic impact starting at $50 million, would have to undergo the risk-assessment and cost-benefit analysis. Fifty million dollars is a very low figure and would easily ensure that any important federal regulation would be subject to the process. The latest expansion of the TRI list, which doubled it, was estimated to cost industry well over $50 million. Critics complain that subjecting all major new or existing regulations to a protracted risk assessment and cost-benefit analysis process will eat up enormous resources for federal agencies. In the case of the EPA, the constant study of risks, costs and benefits would be at the expense of real pollution regulation and prevention.
The bills provide that once the federal agency has completed a risk study it will be subjected to a peer review panel. Critics have called these "de facto veto panels" and even if the panels don't kill regulatory action by an agency they might micromanage it into uselessness. The bills expressly do not exclude from the panels experts who might have financial interests in the outcome of the review, including representatives or employees of any industry which is to be subject to the proposed regulation. Moreover, a conflict of interest by members of review panels need only be made known to the agency, not to the public, and the peer review panel may proceed in secret.
The bills contain sunset provisions which automatically call for the end of any government program, like the TRI, if the EPA fails to complete a lengthy cost-benefit finding that showed the program's costs are justified. Critics claimed the sunset provision would consume enormous agency resources and offer numerous new opportunities for legal challenges. Moreover, the sunset provisions provide opportunities for a hostile administration to make regulatory programs disappear by stalling review.
The bills include petition and lookback provisions which allow numerous opportunities for industries to make government agencies add new rules to a review process or to undertake risk assessment or cost-benefit analysis for existing rules. These provisions give industry the power to significantly slow down rule-making or force an agency to divert resources from activities it really favors. Critics contend that the measures for petition/lookback reviews and sunset reviews in the end provide a "back door route" to delay or kill rules either the federal agency or industry dislikes.
The bills contain broad judicial review that readily allow suits for contentions of noncompliance with the law. Environmentalists maintain this would allow industry to easily delay or stop regulations with lawsuits which were groundless or based on minor errors, inviting excessive litigation and flooding the courts as a result, all without leading to improved EPA decision-making or better regula tions. In sum, environmentalists consider the risk assessment and cost-benefit bills to be tantamount to "paralysis by analysis" which would delay or kill action on important health, safety and environmental regulation.
The key risk assessment and cost-benefit bills, in the form that they had for most of their development, would clearly present new obstacles for the EPA to overcome before it could list new chemicals or industries, add new manufacturing industries, or require other kinds of chemical use information. However, the TRI program itself is not directly the intended target of these bills, at least at first, since they cover nearly all federal regulation and the TRI program would only be one of many programs affected. The effect on the TRI, as well as other federal regulatory programs, would mostly be in the future, arresting the development of the program, not rolling it back.
All this changed as the Dole bill reached the Senate floor, at which time the TRI was no longer a possible hapless victim of the cross-fire of regulatory reform but an intended target where crippling, if not killing, the program was the aim. In an effort to win over more votes from Democratic senators to increase the chances of Senate approval of regulatory reform and resist a potential Presi dential veto, Senator Dole struck a compromise with Senator Bennett Johnston, a Democrat from Louisiana. Louisiana regularly ranks highest in releases of toxics. Johnston, who has been considered crucial to passage of the legislation because he wished regulatory reform, is a leader and advocate of risk assessment, and probably would bring several more Democratic votes as well as moderate Republicans.
Johnston, long an ally of the chemical industry, at its urging inserted into the compromise bill a provision to scale back the TRI program. The chemical industry is especially duplicitous in this matter in light of its previous public pronouncements of support for the program. The provision would nullify the addition of the 286 chemicals the EPA added to the list in November 1994, which had nearly doubled the previous list of 330 chemicals. This special favor to the chemical industry provided by Johnston was hidden in the compromise bill and has been criticized as a "stealth attack" on the right-to-know law. The Johnston measure would require the EPA to provide risk assessment and cost-benefit analysis for all the chemicals added to the TRI in November 1994 within six months of the enactment of the regulatory reform bill, otherwise they would be removed.
Source: RTK Net, Washington, DC
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