FEAR AND LOATHING ABOUT THE PUBLIC RIGHT TO KNOW: THE SURPRISING SUCCESS OF THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT

SIDNEY M. WOLF[*]

Copyright © 1996 Journal of Land Use & Environmental Law

I. INTRODUCTION

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.[1] 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.[2] 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.[3] 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.[4]

In both accidents local authorities were confused about what was happening, what substance was involved, and how to protect citizens.[5] 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.[6]

Congress sought to remedy this shortcoming[7] through the passage of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA).[8] 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.[9] Prior to Bhopal, Congress had been concerned primarily with reworking the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA),[10] commonly called the "Superfund" law, which was propelled into being by another famous toxic chemical tragedy, Love Canal.[11] 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.[12] SARA was intended to amend the original Superfund Act.[13] EPCRA, however, was meant to be a free-standing law and not part of CERCLA or its amend ments.[14] 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."[15]

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.[16] 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.[17]

EPCRA started out in obscurity. Unlike other major federal pollution control statutes (such as the Clean Water Act[18], Clean Air Act[19] and CERCLA[20]), 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."[21] The present Clinton EPA administration regards the TRI as "among our most potent environmental weapons."[22]

This article is likely the most comprehensive law journal article on EPCRA to date.[23] 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.[24] Subtitle A, "Emergency Planning and Notification," consists of sections 301-305.[25] 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,[26] 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[27] 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.[28] In turn, SERCs divide the state into local emergency planning districts, appoint a LEPC for each and supervise and coordinate the LEPC's activities.[29]

The LEPCs, which theoretically represent a broad cross-section of their communities,[30] are required to prepare and implement plans for chemical emergencies.[31] 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.[32]

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.[33] 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).[34] 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[35] 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.[36] 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.[37] This information typically includes safety audits and hazards assessments.[38] All information provided to the SERCs and the LEPCs by the covered facilities must be made available to the public.[39]

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.[40] Chemicals covered under the emergency release notification include not only over 300 EHSs to which emergency planning requirements apply,[41] but also more than 700 hazardous substances subject to the emergency release notification requirement of the Superfund law.[42] 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.[43]

For some of the most hazardous and toxic chemicals on EPCRA and Superfund lists, releases of more than one pound must be reported.[44] For others, the reporting quantities range from ten pounds to ten thousand pounds.[45] All accidental release information provided to the LEPC or the SERC is available to the public.[46]

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,[47] 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)[48] as prescribed by OSHA's Hazard Communication Standard (HAZCOM).[49] More than 50,000 hazardous chemicals are covered by the HAZCOM standard.[50]

There are two different ways facilities must report on their production, use, or storage of OSHA-regulated hazardous chemicals.[51] 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.[52] The EPA is authorized to establish the threshold quantities for this form of reporting.[53] 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.[54] The MSDSs or lists must be updated whenever a facility uses more than a threshold amount of a new chemical.[55] 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.[56]

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.[57] 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.[58] 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.[59] In contrast, the Tier II form is for specific chemicals and is more detailed about location and storage information.[60]

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.[61] However, a company may elect to provide Tier II forms instead of the Tier I version.[62] 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,[63] 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.[64]

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.[65]

2. Toxic Chemical Release Reporting

The most far-reaching, important and controversial right-to-know provision in EPCRA is section 313.[66] 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.[67] 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.[68] 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.[69]

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.[70] The toxic chemical release reports are submitted on standardized forms (Form R) created by the EPA.[71] Form R is submitted to the EPA and state environmental agencies.[72] Facilities must use Form R to report their total annual releases of toxic chemicals into the air, surface water and soil,[73] as well as transfers of these chemicals off-site to public sewers or waste treatment, storage or disposal facilities.[74] The report must use estimates of releases, not actual measurements of releases.[75] 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.[76]

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;[77] (2) employ ten or more full time workers;[78] and (3) manufacture, process, import or otherwise use toxic chemicals above yearly threshold amounts.[79]

EPCRA originally established a threshold of 10,000 pounds[80] 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.[81] The toxic chemical release reporting requirement was originally applied by EPCRA to a list containing 320 chemicals,[82] although the EPA has the authority to add or delete toxic chemicals to the list on its own initiative or by petition.[83] In 1994, the list of reportable TRI chemicals nearly doubled, to over 600.[84]

Congress expanded the TRI reporting requirements in 1990 with the enactment of the Pollution Prevention Act (PPA).[85] The goal of this legislation was to encourage industry to engage in pollution pre vention,[86] 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.[87] PPA's main objective was to encourage the pollution prevention strategy of source reduction, where the pollution is curtailed at the industrial origin.[88]

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.[89] For reporting purposes, one-time releases of an accidental, remedial or abnormal nature were added to routine releases.[90] 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.[91] 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.[92] Finally, the PPA directed that Form R was to include source reduction efforts undertaken by the facility for the TRI chemicals.[93] All the additional reporting mandated by the PPA was to begin in the 1991 reporting year.[94]

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.[95] Only a specific chemical identity may be protected as a trade secret.[96] 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.[97] Trade secret protection does not apply to emergency release notification of hazardous substances.[98]

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.[99]

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.[100] 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.[101] Upon a request by the state's governor, the EPA is required to provide trade secret information to the state.[102] Trade secret claims may be challenged by the public by petitioning the EPA.[103]

2. Preemption

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.[104] 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.[105] 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.[106] The EPA can also assess administrative penalties.[107] The EPA may impose one of two kinds of administrative penalties:[108] Class I, which involves an informal administrative process and allows a maximum penalty of $25,000[109] 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.[110]

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.[111] 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.[112] 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,[113] and for frivolous trade secret claims.[114]

EPCRA's criminal coverage is much more limited than its civil and administrative coverage. Criminal prosecution is limited to violations of emergency notification requirements[115] and for unlawful disclosure of trade secret information.[116]

(b) Enforcement by Citizens, State Governments, and Local Governments

Two kinds of suits are authorized by EPCRA,[117] 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.[118] 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.[119] 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.[120] 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.[121] 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.[122] 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.[123] SERCs, LEPCs, or fire departments may institute suits against facilities for failure to provide emergency response plans and Tier II hazardous chemical inventory forms.[124] 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.[125] In any of these EPCRA suits, the federal court can award attorney fees and costs to any party that prevails.[126]

4. Availability of EPCRA Information to the Public

Except for trade secrets,[127] 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.[128] Each LEPC must annually insert public notices in local newspapers that such information is available to the public.[129] 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.[130]

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.[131] Obviously, large companies can afford the cost of environmental compliance with EPCRA more easily than small companies.[132] 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.[133]

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.[134]

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."[135] It urged the EPA to increase the threshold instead and thus effectively exclude small businesses from hazardous chemical inventory reporting.[136] The SBA maintained that more TRI reporting by small businesses would yield little useful data while creating high costs for them.[137] 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.[138] 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.[139]

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,[140] since the responsibility for chemical disaster emergency planning falls exclusively upon state and local governments through their respective SERCs and LEPCs.[141] Additionally, states share responsibility with the EPA for receiving and using the TRI reports.[142] Administration of the other reporting and notification requirements of the legislation variously fall upon the SERCs, the LEPCs, and the fire departments.[143]

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.[144] The greatest early concern of local officials around the nation was the prospect of being swamped with paper.[145] 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.[146] The fire chief doubted whether fire departments could bear or afford the responsibility.[147]

Rural areas were assumed to be less able to cope with and afford EPCRA responsibilities than urban areas.[148] The Director of the New Jersey Division of Environmental Quality, which administered a community and state right-to-know law enacted prior to EPCRA,[149] 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.[150] 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.[151]

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.[152] 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."[153]

Once a trade secret is lost, it is lost forever.[154] 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.[155] 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).[156] 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."[157] An EPA spokesperson predicted that trade secrecy issues under EPCRA would be heavily litigated.[158]

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.[159] 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.[160] 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.[161] A corporate attorney intimated that minor or inadvertent errors could become the basis for citizen suits.[162] Citizen suits over toxic and hazardous chemical information held the prospect of becoming "embarrassing" to businesses.[163] 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.[164] The EPA, as well, expected citizen suits to be a significant enforcement factor for EPCRA.[165]

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.[166] In both instances business feared being hit with heavy penalties for EPCRA violations.[167] There was concern that small businesses would become major victims of the EPA's enforcement,[168] a prospect the EPA very early attempted to dispel.[169]

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.[170] One corporate attorney called EPCRA a "veritable gold mine" for potential plaintiffs in toxic tort suits.[171] 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.[172] Toxic tort suits are typically time-consuming and costly. One corporate lawyer noted that EPCRA lowers the "entry barriers" to toxic tort litigation.[173]

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.[174] 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.[175]

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.[176] EPCRA reports were seen as enabling the EPA and citizen litigants to uncover evidence of discharges in violation of these other laws.[177]

E. Preemption Concern

Concern about preemption arose. EPCRA expressly provides it will not preempt state and local laws.[178] 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.[179] 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.[180]

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.[181] 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.[182]

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.[183] He noted that the EPA had to take an enormous amount of EPCRA data and put it in a form understandable to the public.[184] 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.[185]

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."[186] An IBM executive told a trade association that once EPCRA information was made public it is "probably going to scare a lot of people."[187] The chairman of Du Pont Chemical advised the chemical industry to try to convince the public that chemical releases were "not of crisis proportion."[188] 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?"[189] Reagan Administration EPA officials appeared to share this general industry perception that the public would be shocked by what EPCRA revealed.[190]

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."[191] 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.[192] 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.[193]

IV. FEARS FULFILLED AND UNFULFILLED

A. No Trade Secret Problem

The concern about trade secrets appears unwarranted.[194] 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.[195] 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.[196] 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.[197]

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.[198] A number of states showed no reluctance in enacting right-to-know law provi sions which were more stringent than those of EPCRA.[199]

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.[200] 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.[201]

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.[202] 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.[203]

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.[204] In 1992, the SBA, backed by a group of small business trade associations,[205] 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.[206] 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.[207]

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,[208] 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.[209] The SBA was also concerned about an increasing burden for small businesses because of costly state and federal "piggyback" or "domino" reporting requirements.[210] 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,[211] 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.[212]

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.[213] The director of EPA's Toxics Release Inventory staff cautioned that "[a] small business does not necessarily mean a small source."[214]

Not surprisingly, environmental organizations objected to the SBA proposal.[215] Environmentalists do not want less information, they want more.[216] 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.[217] 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.[218] 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.[219]

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.[220] 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.[221] 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 . . . ."[222] 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.[223] 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.[224]

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.[225] 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.[226] 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.[227] 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.[228] 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.[229] 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.[230]

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.[231] 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.[232] 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.[233] 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.[234] 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.[235] The OMB, which must approve EPA regulations, had been under pressure from small businesses to lighten the reporting load under EPCRA.[236]

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.[237] 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.[238] For environmentalists, the only credible release-based exemption would be an exemption set as close to zero releases as possible.[239] 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.[240] 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.[241] Low-release exemptions are also inconsistent with EPA and other future federal efforts to pursue zero discharge regulatory restrictions for some serious toxic chemicals.[242]

In late November 1994, the EPA adopted the low-release/high-threshold approach in a final rule.[243] 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.[244] 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.[245] 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.[246]

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,[247] 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.[248]

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.[249] 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.[250] 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.[251] Reagan bowed to strong public support for passage of the Superfund reauthorization in deciding not to veto it.[252]

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.[253] 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."[254] 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.[255]

Dingell had been pivotal in the passage of the Superfund legislation and he indicated that he would seek congressional appropriations specifically for EPCRA.[256] 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.[257] 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.[258]

Funding continues to be a persistent problem for states and local governments in administering the emergency planning and response activities of EPCRA.[259] 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.[260] LEPCs and fire departments particularly lack financial support, both from the federal government and from their own states.[261]

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.[262] Neither the EPA nor Congress has been supportive of direct funding to state and local governments to carry out their EPCRA responsibilities.[263] 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.[264] EPCRA authorized no more than "training grants" to the states, which were suspended by the Reagan Administration in 1988.[265] 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.[266]

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.[267] The EPA's actual spending to carry out its EPCRA responsibilities have been relatively modest ever since.[268] Environmentalists have long complained that EPCRA has not been adequately funded by the federal government.[269]

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.[270] Only slightly more than half the states have reported legislative appropriations for their SERCs.[271]

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,[272] had funding for its right-to-know program threatened by a poor economy and budget shortfall.[273] 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.[274]

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.

1. Noncompliance

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.[275] 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.[276] 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.[277] Almost four years after the passage of EPCRA, the EPA admitted enforcement was a problem for the TRI.[278]

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.[279] In some manufacturing sectors, compliance appears to be particularly bad.[280] The rate of noncompliance is worse in some states than in others.[281]

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.[282] 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.[283]

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.[284] 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.[285] The EPA's implementation and enforcement of toxic chemical release reporting has been faulted by critics as inadequately funded.[286]

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.[287] The GAO regarded most non-reporting as unintentional and concentrated among small and medium size manufacturing facilities who were unaware of the reporting requirement.[288]

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.[289] The GAO faulted the EPA for its inefficient strategies to identify non-reporters.[290] The GAO contended that the EPA did not screen facilities before undertaking inspections and that the failure to do so led to noncompliance.[291] The GAO agreed with the EPA's concern over the failure of EPCRA to grant it explicit authority to inspect facilities for compliance,[292] unlike other federal pollution control statutes.[293]

The GAO found the EPA slow to take enforcement action even after conducting inspections and finding facilities were not reporting the TRI releases.[294] Moreover, the GAO noted that the EPA was slow in resolving the few complaints it did initiate.[295] The GAO determined that the EPA's delays in issuing civil complaints were key reasons why so few enforcement cases were resolved.[296] The GAO stated that delays in the EPA's settlement process also contributed to a backlog of enforcement cases.[297]

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.[298] 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.[299]

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.[300] 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.[301] 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.[302] 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.[303]

2. EPA Judicial and Administrative Enforcement

Fear over frequent federal enforcement and heavy judicial and administrative penalties so far has not turned into reality.[304] 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.[305] 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,[306] 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.[307] EPCRA enforcement appears to follow this overwhelming tendency toward settlement.[308] 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.[309] The EPA has shown an increasing tendency to accept settlements that allow companies to undertake pollution control measures in lieu of hefty fines.[310]

Federal enforcement of EPCRA has covered all the reporting requirements.[311] The typical EPCRA penalty ranges from several thousand to several hundreds of thousands of dollars.[312] EPCRA follows the EPA pattern for other federal environmental laws where most enforcement is via administrative action rather than criminal or civil judicial actions.[313] The EPA acknowledges that a penalty is likely to be higher in a judicial case than in an administrative case.[314]

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.[315] 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.[316]

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.[317] 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.[318] There are examples of significant EPA monetary settlements of EPCRA actions.[319] The EPA has consistently pursued some degree of monetary penalties for EPCRA violations.[320] According to the EPA, EPCRA's TRI program is the "largest regulatory net ever cast."[321]

Despite the fact that EPCRA's coverage extends more widely than other environmental laws,[322] 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.[323] 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.[324] 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.[325]

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.[326] EPCRA settlements pale in comparison with those achieved under other federal environmental laws.[327] 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.[328] 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.[329] Moreover, though the EPA has announced significant settlements,[330] it reportedly has a checkered record in pursuing and collecting the penalties agreed upon in settlements.[331]

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.[332] 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.[333]

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.[334] Nevertheless, criminal enforcement of EPCRA is monumentally unimpressive. By late 1994, the federal government secured only one criminal prosecution under EPCRA.[335]

The EPA enforcement of EPCRA has a long way to go for the "largest regulatory net ever cast"[336] 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.[337] 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.[338]

States have shown forbearance in enforcing community right-to-know and pollution prevention legislation.[339] States may bring citizen suits against EPCRA violators but these actions appear rare.[340] Most states have come to rely upon the EPA to handle enforcement of the key TRI program.[341] 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.[342] 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.[343] In fact, the states have begged the EPA to take on this responsibility.[344]

The EPA does not generally have high regard for state enforcement of environmental programs.[345] 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.[346] 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.[347] 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,[348] 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.[349] It recommended that citizen suit litigation be used selectively to set precedents in key areas.[350] 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.[351] Few citizen suits have been brought by individuals.[352]

The first citizen suit against a corporate violator was filed in July 1990 by the ASLF.[353] Very little reported case law has been generated by EPCRA.[354] 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.[355] 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.[356] 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.[357] 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.[358]

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.[359] 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.[360]

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.[361] One commentator, referring to the TRI, stated it amounted to "regulation by information."[362] Another stated, perhaps more cleverly, that the TRI data has lead to "regulation by embarrassment."[363]

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.[364] 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.[365] Prior to the EPA's first report, only a few environmentalists expected significant or revolutionary implications for EPCRA.[366] 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.[367] 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.[368] The EPA announced that these results were "startling"[369] and "far higher than we thought was going to occur."[370] One of the principal authors of EPCRA, Senator Frank Lautenberg, Democrat from New Jersey, declared that the data was "staggering"[371] and showed that "we were assaulting the environment with toxic emissions into the air, water and ground."[372]

The first national report revealed eye-opening data on the toxic releases and transfers into the air, land and water,[373] the top releasing states,[374] the substances,[375] and the industry groups.[376] 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[377] and parent companies.[378] These reports continued to show enormous toxic releases, transfers, and waste generation.[379]

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.[380] The TRI data is accessible to the public on a national computerized database, as well as by other means.[381] While relatively few individuals have utilized EPCRA, environmental and public interest organizations use the law extensively.[382]

Environmental and public interest groups often perform the role of proxies for the environmental concerns of the public.[383] 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.[384] These groups have become some of the most prolific users of TRI data.[385] 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.[386] These reports have covered local, state,[387] regional[388], national[389] and international[390] 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.[391] Some of these public interest reports have questioned the EPA and industry claims of concern and success for pollution prevention.[392] 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.[393]

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.[394] 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.[395]

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.[396] A Berlin, New Jersey citizen group used the TRI data to induce a local company to adopt a chemical hazard accident plan.[397] 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.[398] Similarly, the TRI data for Louisiana facilitated the passage of a bill to address previously unregulated airborne toxic substances emissions.[399]

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.[400] In Oregon, the TRI data was used by environmentalists to spur the enactment of a strong toxic reduction statute.[401] 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.[402] Labor union and community groups in Northfield, Minnesota, won a reduction pledge from a local company for worker and community exposure to methylene chloride.[403] In Henderson, Kentucky, citizens used a trade secret challenge involving the TRI data to highlight important community environmental issues.[404]

Environmental organizations have organized campaigns to publicize companies' releases of TRI chemicals.[405] 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.[406]

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.[407] Press stories come in two forms: overviews of the TRI data after its yearly release, or in-depth analysis of specific locations or companies.[408]

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.[409] The first inventory results also received national television coverage.[410] 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.[411]

The TRI, a computer database, has contributed to making environmental journalism more mature and responsible.[412] 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.[413] Journalists have not been entirely independent in using or accessing the TRI data.[414] They often depend upon citizen and environmental organizations as a source for acquiring and interpreting the TRI data.[415] 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.[416] Newspapers and broadcast media have based many investigative stories on the TRI data.[417] 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.[418]

D. Impact on Legislation and Regulation

EPCRA has been said to reveal the success or failure of environmental laws and regulations.[419] 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.[420] 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.[421] 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.[422]

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.[423] 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.[424] 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,[425] which environmental organizations had persistently sought.[426]

The third expansion came in late 1994 with another Clinton Administration EPA rule,[427] 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.[428] This substantial broadening of coverage of the TRI reporting had long been urged by environmental groups[429] and was depicted by the Clinton Administration EPA as the first of three phases for expanding the TRI even more.[430] Nearly half of the new chemicals added to the list were pesticides that were regulated under the federal pesticide law, FIFRA,[431] but that had not been placed on the original TRI list.[432] 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.[433]

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.[434] The United States EPA has ordered com panies that operate maquilladora factories inside Mexico to report their toxic chemical pollution.[435] The TRI has come to be seen as a model by the United States and other nations to monitor global climate warming gases.[436]

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.[437]

The enactment of the Pollution Prevention Act of 1990 has already been mentioned. However, the Clean Air Act Amendments of 1990[438] 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[439] to regulate only seven air toxics in nineteen years.[440] 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.[441] 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.[442] 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.[443]

Federal farm legislation enacted in 1990 adopted a public right-to-know provision for agricultural pesticide use.[444] 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.[445] 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.[446] 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.[447]

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,"[448] 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.[449] 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.[450]

The Clinton Administration's EPA appears to have enthusias tically embraced the philosophy of the 33/50 program[451] and claims the program has achieved significant and admirable progress.[452] 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.[453]

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.[454] 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,[455] some of them roused into action through the efforts of public interest groups using the TRI data to influence legislative action.[456]

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.[457] 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.[458]

The TRI is used as an enforcement tool by helping to identify pollution control targets that were not apparent through conventional emissions information.[459] It has been applied to cross-check reporting facilities with other environmental databases to select facilities for inspections and compliance under other environmental statutes.[460]

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.[461] 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.[462] State agencies have used the TRI data to screen for potential health and environmental risks posed by toxic chemical releases and transfers.[463] They have also used the TRI to target technical assistance to TRI facilities.[464] 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.[465]

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.[466] In many cases, the TRI shows the astonishing extent to which industries use our environment as a dumping ground.[467]

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"[468] which could "haunt" industries handling chemicals.[469] 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.[470] 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."[471]

The TRI has had several impacts on industry. Industry is one of the largest, if the not the largest, user of the TRI database.[472] 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.[473] 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.[474]

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.[475] Monsanto, for instance, was revealed by the first inventory results to be a top air polluter.[476] As its vice-chairman noted, "[w]e knew the numbers were high, and we knew the public wasn't going to like it."[477] 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.[478]

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.[479] In effect, the TRI has amounted to "regulation by information" for industry.[480]

Perhaps the best known voluntary initiative is that launched in 1988 by the Chemical Manufacturers Association (CMA) called "Responsible Care."[481] The EPA's 33/50 program was patterned after Responsible Care.[482] 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.[483] 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.[484]

The head of CMA admitted "Responsible Care was launched for one basic reason: the industry had no choice."[485] 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.[486] 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.[487]

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.[488] 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.[489]

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.[490] 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.[491]

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.[492] 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.[493] The Citizens Fund contacted fifty top waste generating facilities in the chemical industry to gauge their progress in preventing pollution.[494] 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.[495] 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.[496]

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.[497]

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.[498]

VI. CONCLUSION

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.[499]

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.[500] These proposals have both the intent and the effect of subjecting governmental communication about chemical risks and exposure to paralyzing review and delay.[501] 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.[502] 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.[503]

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.[504] 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.[505] 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.[506]

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[507] 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.[508] The key Senate counterpart for risk assessment legislation, the Comprehensive Regulatory Reform Act of 1995,[509] was introduced by Senator Dole, which is in most respects similar to H.R. 9.[510] 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.[511]

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.[512] 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.[513]

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"[514] and even if the panels don't kill regulatory action by an agency they might micromanage it into uselessness.[515] 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.[516] 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.[517]

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.[518] Moreover, the sunset provisions provide opportunities for a hostile administration to make regulatory programs disappear by stalling review.[519]

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.[520] These provisions give industry the power to significantly slow down rule-making or force an agency to divert resources from activities it really favors.[521] 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.[522]

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.[523] 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.[524]

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.[525] 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.[526] Louisiana regularly ranks highest in releases of toxics.[527] 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[528] as well as moderate Republicans.[529]

Johnston, long an ally of the chemical industry, at its urging inserted into the compromise bill a provision to scale back the TRI program.[530] 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.[531] 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.[532]

Environmental groups found the Dole-Johnston compromise un acceptable,[533] and the Clinton White House, regarding it too radical, threatened to veto the measure.[534] In July 1995 the Dole Bill failed to get the sixty votes needed to cut off debate. Senator Dole has promised to revive this bill during the current Congressional session. All in all, the future success of the TRI is now uncertain.

_______________________________

[*] Director, Graduate Program in Regional Planning, University of Massachusetts at Amherst; B.G.S., University of Iowa; M.A., Urban and Regional Planning, University of Iowa; J.D., University of Iowa; Ph.D., University of Illinois. Return to text.

[1] PAUL SHRIVASTAVA, BHOPAL: ANATOMY OF A CRISIS 64-67 (1987); WARD MOREHOUSE & M. SUBRAMANIAM, THE BHOPAL TRAGEDY: WHAT REALLY HAPPENED AND WHAT IT MEANS FOR AMERICAN WORKERS AND COMMUNITIES AT RISK vii (1986) (describing Bhopal as the "Hiroshima" of the chemical industry); BHOPAL ACTION RESOURCE CENTER, BHOPAL AND ITS AFTERMATH: SELECTED BIBLIOGRAPHY (1989); The Bhopal Tragedy: Social and Legal Issue: A Symposium, 20 TEX. INT'L L.J. 267 (1985). The Union Carbide facility released 20 tons of methyl isocynate, a highly toxic chemical used in the manufacture of insecticides and herbicides. 13 ENCYCLOPEDIA OF CHEMICAL TECHNOLOGY 806 (3d ed. 1981). Return to text.

[2] Stuart Diamond, Carbide Leak Highlights Defects in Systems Handling Toxic Matter, N.Y. TIMES, Aug. 19, 1985, at A1; Steam in Chemical Storage Tank Named As Likely Cause of Union Carbide Accident, 16 Env't Rep. (BNA) 635 (Aug. 16, 1985) [hereinafter Steam]. Return to text.

[3] Diamond, supra note 2, at A1. Return to text.

[4] Steam, supra note 2, at 635. Return to text.

[5] Thomas A. Curtis & Michael C. Whittington, Reporting Requirements: Under the Federal Emergency Planning and Community Right-to-Know Act and Texas Chemical Reporting Act, 53 TEXAS B.J. 568 (June 1990). Return to text.

[6] Draft EPA Study Counts 6,900 Releases of Acutely Toxic Chemicals in Five Years, 16 Env't Rep. (BNA) 1022 (Oct. 11, 1985). Return to text.

[7] Carbide Accident May Speed Controls, Right-to-Know, Emergency Response Rules, 16 Env't Rep. (BNA) 635 (Aug. 16, 1985). Return to text.

[8] Pub. L. 99-499, tit. III, § 301, 100 Stat. 1729 (1986) (codified as amended at 42 U.S.C. §§ 11001-11050 (1988 & Supp. V 1993)). Return to text.

[9] February/March 1991 edition of Working Notes on Community Right-to-Know, available in RTK-NET, Entry No. 225, May 16, 1991. For a more detailed discussion of the Right-to -Know Network (RTK-NET) see infra note 415 and accompanying text. Return to text.

[10] Pub. L. No. 96-510, tit. I, § 101, 94 Stat. 2767 (1980) (codified as amended at 42 U.S.C. §§ 9601-9675 (1988 & Supp. V 1993)). Return to text.

[11] CERCLA was designed to clean up thousands of leaking toxic chemical dumps around the nation. See Sidney M. Wolf, Public Opposition to Hazardous Waste Sites: The Self-Defeating Approach to National Hazardous Waste Control Under Subtitle C of the Resource Conservation and Recovery Act of 1976, 8 B.C. ENVTL. AFF. L. REV. 467 n.13 (1980) (describing the Love Canal tragedy). Return to text.

[12] Pub. L. No. 99-499, §§ 300-330, 100 Stat. 1613, 1728-58 (1986) (codified in scattered sections of the I.R.C. and titles 10, 29, 33 and 42 of the U.S.C.). Return to text.

[13] See Steven J. Christiansen & Stephen H. Urquhart, The Emergency Planning and Community Right to Know Act of 1986: Analysis and Update, 6 B.Y.U. J. PUB. L. 235-36 (1992). Return to text.

[14] H.R. REP. NO. 99-962, 99th Cong., 2d Sess. 281 (1986), reprinted in 1986 U.S.C.C.A.N. 3374. See also A.L. Laboratories, Inc. v. EPA, 826 F.2d 1123, 1125 (D.C. Cir. 1987) (holding that EPCRA was an independent act rather than an amendment to CERCLA). Return to text.

[15] H.R. REP. NO. 99-962, 99th Cong., 2d Sess. 281 (1986), reprinted in 1986 U.S.C.C.A.N. 3374. Return to text.

[16] Robert Abrams & Douglas Ward, Prospects for Safer Communities: Emergency Response, Community Right to Know, and Prevention of Chemical Accidents, 14 HARV. ENVTL. L. REV. 135, 154 n.74 (1990). Return to text.

[17] The House included, by only a one-vote margin, chemicals that cause chronic health effects. (212-211). Id. Return to text.

[18] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (1994). Return to text.

[19] 42 U.S.C. §§ 7401-7642 (1988 & Supp. V 1993). Return to text.

[20] 42 U.S.C. §§ 9601-9675 (1988 & Supp. V 1993). Return to text.

[21] National Report Released, Working Notes on Community Right-to-Know, November 1990 Working Group on CRTK Newsletter, available in RTK-NET, Entry No. 1941, April 25, 1991 (Bush administration EPA administrator). Return to text.

[22] Carol M. Browner, 1993 Statement on '91 Toxics Release Inventory, available in RTK-NET Entry No. 4133, May 25, 1993 (statement of EPA Administrator Carol M. Browner). Return to text.

[23] Other law journal articles include: Christiansen & Urqhart, supra note 13; Portia C. Smith, Comment, The Preemptive Effect of the Emergency Planning and Community Right-to-Know Act of OSHA's Hazard Communication Standard, 67 WASH. U.L.Q. 1156 (1989); Abrams & Ward, supra note 16; Wayne T. Halbleib, Emergency Planning and Community Right-to-Know Act, in ENVIRONMENTAL HANDBOOK 278, 278-307 (1995). Return to text.

[24] In the United States Code, "subchapters" are used rather than "subtitles." Therefore, Subchapters I-III in the code correspond to Subtitles A-C of Title III of SARA as enacted by Congress. Return to text.

[25] 42 U.S.C. §§ 11001-11005 (1988 & Supp. V 1993). Return to text.

[26] 42 U.S.C. §§ 11021-11023 (1988 & Supp. V 1993). Return to text.

[27] 42 U.S.C. §§ 11041-11050 (1988 & Supp. V 1993). Return to text.

[28] 42 U.S.C. § 11001(a) (1988 & Supp V 1993). The governor can choose to name one or more existing state agencies, such as the environmental, emergency, health, transportation, and other relevant agencies, as the SERC. Members of trade associations, public interest organizations and others with expertise in emergency planning may be included on the SERC. Id. Congress set April 17, 1987 as the deadline for establishing SERCs. Id. Return to text.

[29] 42 U.S.C. § 11001(b) (1988 & Supp. V 1993). SERCs were required to designate LEPCs by July 17, 1987. Id. Existing political subdivisions or multi-jurisdictional planning organizations may be designated by the SERC as a LEPC. Id. Return to text.

[30] The members a SERC chooses for a LEPC must, at a minimum, include representatives from the following groups or organizations: elected state and local officials; law enforcement, civil defense, fire-fighting, first aid, health, local environmental, hospital and transportation personnel; broadcast and print media; community groups; and owners and operators of facilities subject to EPCRA. 42 U.S.C. § 11001(c) (1988 & Supp. V 1993). Any "interested person" dissatisfied with the composition of a LEPC can petition the SERC to have the membership modified. 42 U.S.C. § 11001(d) (1988 & Supp. V 1993). Return to text.

[31] 42 U.S.C. § 11001(c) (1988 & Supp. V 1993). The initial plans were required to be completed by October 17, 1988 and must be reviewed at least once a year. 42 U.S.C. § 11003(a) (1988 & Supp. V 1993). EPCRA directs LEPCs to establish rules under which they are to function and that the rules provide for public notification of committee activities, public meetings to discuss emergency plans, public comments, response to the comments, and distribution of the emergency plans. 42 U.S.C. § 11001(c) (1988 & Supp. V 1993). Return to text.

[32] 42 U.S.C. § 11001(a), (c) (1988 & Supp. V 1993). Return to text.

[33] LEPC emergency plans are required, at the very least, to do the following: identify facilities and transportation routes where hazardous substances are present; establish emergency response procedures, including evacuation plans, for accidental chemical releases; set up notification procedures for emergency response personnel and the public; establish methods for determining the occurrence and severity of a release and the areas and populations likely to be affected; identify emergency equipment available in the community; set forth a program and schedules for training local emergency response and medical workers to respond to chemical emergencies; provide methods and schedules for conducting exercises to test the elements of the emergency response plan, and designate a community coordinator and facility coordinators to carry out the plan. 42 U.S.C. § 11003(c) (1988 & Supp. V 1993). Return to text.

[34] 42 U.S.C. § 11002(b)(1) (1988 & Supp. V 1993). Return to text.

[35] The EPA was required to set a threshold amount for all the substances on its original EHS list. If the EPA failed to set a TPQ for any substance, EPCRA automatically sets the threshold at two pounds. 42 U.S.C. § 11002(a)(3)(A), (C) (1988 & Supp. V 1993). Like the EHS list, the EPA can revise the thresholds from time to time. 42 U.S.C. § 11002(a)(4) (1988 & Supp. V 1993). Return to text.

[36] 42 U.S.C. § 11003(d) (1988 & Supp. V 1993). The governor or the SERC may designate additional facilities as subject to emergency planning requirements. 42 U.S.C. § 11002(b)(2) (1988 & Supp. V 1993). Return to text.

[37] 42 U.S.C. § 11003(d)(3) (1988 & Supp. V 1993). Return to text.

[38] OMB WATCH, USING COMMUNITY RIGHT TO KNOW: A GUIDE TO A NEW FEDERAL LAW 13 (1988). Return to text.

[39] 42 U.S.C. § 11044(a) (1988 & Supp. V 1993). Return to text.

[40] 42 U.S.C. § 11004(a)(1) (1988 & Supp. V 1993). The initial report may be by telephone, but a follow-up written report with additional, more detailed information is also required. 42 U.S.C. § 11004(b), (c) (1988 & Supp. V 1993). The immediate notification must include: the name of the chemical; the location of the release; whether the chemical is on the "extremely hazardous" list; how much of the substance has been released; the time and duration of the incident; whether the chemical was released into the air, water or soil or some combination of the three; known or anticipated health risks and necessary medical attention; proper precautions, such as evacuation; and a contact person at the facility. 42 U.S.C. § 11004(b)(2) (1988 & Supp. V 1993). As soon as practicable after the release, the facility must submit a written report to both the LEPC and the SERC. 42 U.S.C. § 11004(c) (1988 & Supp. V 1993). This follow-up report must update the original notification and provide additional information on response actions taken, known or anticipated health risks, and, if appropriate, advice regarding any medical care needed by exposure victims. Id. Return to text.

[41] 42 U.S.C. § 11004(a)(2) (1988 & Supp. V 1993). The reportable quantities for EHSs are set out in 40 C.F.R. § 355, app. A. (1995). Return to text.

[42] 42 U.S.C. § 11004 (a)(1) (1988 & Supp. V 1993). Of the hazardous substances for which emergency notification was required, EPCRA adopted those which EPA defined as hazardous substances and listed as requiring notification to federal authorities when released pursuant to section 103(a) of CERCLA. 42 U.S.C. § 11004(a)(1) (1988 & Supp. V 1993) (referring to 42 U.S.C. § 9603(a)). The list of hazardous substances and their reportable quantities under CERCLA are set out at 40 C.F.R. § 302.4 (1995). Return to text.

[43] 42 U.S.C. §§ 11004(a)(2), 11002(b) (1988 & Supp. V 1993). Return to text.

[44] 42 U.S.C. § 11004(a)(2), 11004(3)(B)(i) (1988 & Supp. V 1993). Return to text.

[45] UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, CHEMICALS IN YOUR COMMUNITY: A GUIDE TO THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT 6 (1988). Return to text.

[46] 42 U.S.C. § 11044(a) (1988 & Supp. V 1993). Return to text.

[47] Pub. L. No. 91-596, 84 Stat. 1590 (codified as amended in scattered sections of 15 U.S.C.), 42 U.S.C. § 11021(a) (1988 & Supp. V 1993). Return to text.

[48] 42 U.S.C. § 11049(6) (1988 & Supp. V 1993) (defining an MSDS as the sheet required to be developed under 29 C.F.R. § 1910.1200(8)). An MSDS is a fact sheet which contains the chemical names and safety instructions for hazardous chemicals. 29 C.F.R. § 1910.1200(g) (1995). Manufacturers of hazardous chemicals must provide employers with MSDS sheets about the hazardous chemicals they receive. The MSDS is divided into eight sections: 1) product identity; 2) hazardous ingredients; 3) physical data; 4) fire and explosion data; 5) reactivity data; 6) health hazard data; 7) precautions for handling; and 8) control measures. Employers must make the MSDS information available to employees by maintaining copies of the MSDSs in the establishment and making them readily accessible to employees during work shifts. 29 C.F.R. § 1910.1200(g)(8) (1995). Return to text.

[49] 29 C.F.R. § 1910.1200 (1995). The standard covers employment under Standard Industrial Classification Codes 20-39, which cover manufacturing of a wide variety of products, including food, textiles, apparel, lumber, wood, furniture, paper products, chemicals, petroleum products, rubber and plastics, leather goods, stone, glass, clay, metals, machinery, and other miscellaneous goods. 29 C.F.R. § 1910.1200(a)(2), (b)(1) (1995). Under OSHA, companies are required to keep MSDSs on file for all hazardous chemicals used in the workplace. Chemicals considered hazardous under OSHA are those known by the manufacturer to: cause acute health effects; cause cancer or other chronic hazards to humans; or have special dangerous physical properties, like reactivity or flammability. 42 U.S.C. 11002 indicates that, with some exceptions, the HAZCOM standard of OSHA, 29 C.F.R. § 1910.1200(c) (1995) defines hazardous chemicals under EPCRA. Return to text.

[50] OMB WATCH, supra note 38, at 12. Return to text.

[51] OSHA defines a "hazardous chemical" as either a "physical hazard or a health hazard." 29 C.F.R. § 1910.1200(c) (1995). A "physical hazard" is deemed to be any "chemical for which there is scientifically valid evidence that it is a combustible liquid, a compressed gas, explosive, flammable, an organic peroxide, an oxidizer, pyrophoric, unstable (reactive) or water reactive." Id. "Health hazard" is "a chemical for which there is statistically significant evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees." Id. See also Appendix A of OSHA standard (defining a health hazard in greater detail) and Appendix B (specifying the criteria necessary for making a hazardous chemical determination). 29 C.F.R. § 1910.1200 app. A (1988); 29 C.F.R. § 1910.1200 app. B (1988). Return to text.

[52] 42 U.S.C. § 11021(a)(1), (2) (1988 & Supp. V 1993). Where a list is supplied in lieu of individual MSDSs, it must include, for each chemical, the chemical name or common name and any hazardous component of each chemical as these were provided on the MSDS. 42 U.S.C. § 11021(a)(2) (1988 & Supp. V 1993). Upon request of a LEPC, the actual MSDS must be provided by the facility. 42 U.S.C. § 11021(c)(1) (1988 & Supp. V 1993). Return to text.

[53] 42 U.S.C. § 11021(b) (1988 & Supp. V 1993). Return to text.

[54] 40 C.F.R. § 370.20(b)(1)-(2) (1995). Section 311 of EPCRA ties reporting to the "hazardous chemicals" for which the MSDS requirement of OSHA applies. 42 U.S.C. § 11021(a)(1) (1988 & Supp. V 1993). Section 311 states that the term "hazardous chemical" for the purposes of EPCRA is the same as its HAZCOM definition under 29 C.F.R § 1910.1200(c). 42 U.S.C. § 11021(e) (1988 & Supp. V 1993). In its rules, the EPA added to the section 311 reporting requirement the "extremely hazardous" substances for which EPCRA section 302 requires emergency release notification. 40 C.F.R. § 370.20(b)(1) (1995). These chemicals too are subject to the MSDS requirements. The EPA had set the emergency release reporting threshold for extremely hazardous substances at 500 pounds or the TPQ, whichever is lower. 40 C.F.R. § 370.20(b)(1) (1995). As a result, if the chemical is an extremely hazardous substance and subject to the section 302 emergency planning and release notification requirement, the threshold for reporting is 500 pounds or the TPQ for extremely hazardous substances, whichever is lower. All other chemicals for which MSDS reporting is required are subject to reporting by a facility if present in amounts equal to or greater than 10,000 pounds. 40 C.F.R. § 370.20(b) (1995). Return to text.

[55] 42 U.S.C. § 11021(d)(2) (1988 & Supp. V 1993). The initial deadline for submission of the MSDS information was October 17, 1987. 42 U.S.C. § 11021(d)(1)(A) (1988 & Supp. V 1993). Return to text.

[56] 42 U.S.C. § 11021(c)(2) (1988 & Supp. V 1993). If a list of chemicals is provided rather than the actual MSDSs, the LEPC can obtain the MSDSs from the facility. 42 U.S.C. § 11021(c)(1) (1988 & Supp. V 1993). Any person can request the LEPC to obtain and make available the MSDSs. 42 U.S.C. § 11021(c)(2) (1988 & Supp. V 1993). If a facility fails to make the information available, any state or local government can bring suit in federal district court to compel compliance. 42 U.S.C. § 11046(a)(2)(A)(iii) (1988 & Supp. V 1993). Return to text.

[57] 42 U.S.C. § 11022(a), (c) (1988 & Supp. V 1993). The forms are called "emergency and hazardous chemical inventory" forms. 42 U.S.C. § 11022(a)(1) (1988 & Supp. V 1993). Return to text.

[58] OMB WATCH, supra note 38, at 14i. Return to text.

[59] EPCRA required the first Tier I inventory to be submitted to the LEPC, the SERC, and the local fire department by March 1, 1988 and every March afterwards, with the annual inventory covering the preceding calendar year. 42 U.S.C. § 11022(a)(2) (1988 & Supp. V 1993). In the Tier I inventory, aggregated amounts of hazardous substances are grouped into five OSHA health hazard categories: (1) acute or immediate health hazards (substances which can cause immediate health effects); (2) chronic or delayed health hazards (substances which may cause health effects that may only be detectable after a period of time); (3) fire hazards; (4) reactive hazards (substances which may react with other hazards); and (5) sudden release of pressure hazards. 42 U.S.C. § 11022(d)(1)(A) (1988 & Supp. V 1993). The Tier I annual report includes an estimate (in ranges) of the aggregate maximum and aggregate average daily amounts and general location of each category of hazardous chemicals at the facility. 42 U.S.C. §§ 11022(d)(1)(B)(i)-(iii) (1988 & Supp. V 1993). Return to text.

[60] The Tier II report includes the same information on the amounts for a specific chemical (using estimated ranges) that is required for aggregate chemicals in the Tier I report. Compare 42 U.S.C. § 11022(d)(1)(B)(i)- (ii) (1988 & Supp. V 1993) with 42 U.S.C. § 11022(d)(2)(B)-(C) (1988 & Supp. V 1993). However, the Tier II report also describes the manner of storage of the chemical and its specific location at the facility. 42 U.S.C. § 11022(d)(2)(D)-(E) (1988 & Supp. V 1993). While the facility must indicate the specific location of chemicals in the Tier II form which it provides to the SERC, the LEPC and the fire department, it may elect to specify that such locational information for any chemical be withheld from disclosure under the public availability of information provision of EPCRA. 42 U.S.C. §§ 11022(d)(2)(F), 11044(a) (1988 & Supp. V 1993). Return to text.

[61] 42 U.S.C. § 11022(e) (1988 & Supp. V 1993). Because Tier II information can only be provided upon a specific request for information for a particular facility, the statute prevents any governmental official from establishing as an annual reporting requirement the Tier II forms on specific chemicals. H.R. REP. NO. 99-253(V), 99th Cong., 2d Sess. 290 (1986), reprinted in 1986 U.S.C.C.A.N. 3383. Return to text.

[62] 42 U.S.C. § 11022(a)(2) (1988 & Supp. V 1993). Return to text.

[63] SERCs and LEPCs are to make available to the public Tier I inventory forms they receive. 42 U.S.C. § 11044(a) (1988 & Supp. V 1993). Return to text.

[64] 42 U.S.C. § 11022(e) (1988 & Supp. V 1993). For the first category, state commissions, local committees, and local fire departments can directly request a facility to provide Tier II information on a specific chemical. 42 U.S.C. § 11022(e)(1) (1988 & Supp. V 1993). The state and local officials, when acting in an official capacity, can request that a facility provide Tier II information on specific chemicals, but only through a request to the state commission or local committee. 42 U.S.C. § 11022(e)(2) (1988 & Supp. V 1993). Neither the SERC nor the LEPC can deny this kind of request by state and local officials. Id. Public access to Tier II information is generally governed by EPCRA section 324, its public availability provision, which specifies that information received by a SERC or a LEPC can be viewed during the operating hours and on their premises. 42 U.S.C. §§ 11044(a), 11022(e)(3) (1988 & Supp. V 1993). In the Tier II form, the facility may indicate whether the specific location of a chemical may be kept confidential from the public, and if this indication is made then the information is not subject to public disclosure. 42 U.S.C. §§ 11022(f)(2)(F), 11044(a) (1988 & Supp. V 1993). Put another way, the SERC, the LEPC, and the local fire department may use the location information but not disclose it to the public. Requests by members of the public for the information must be in writing, facility specific, and either the LEPC or the SERC must respond within 45 days. 42 U.S.C. § 11022(e)(3)(A), (D) (1988 & Supp. V 1993).

Where the Tier II information is in possession of the state commission or local committee, then it must be made available, with the exception of the specific location of the chemical at the facility that the facility owner had elected to be withheld from disclosure in the Tier II form. 42 U.S.C. §§ 11022(d)(2), 11022(e)(3)(B), 11044(a) (1988 & Supp. V 1993). If the state commission or local committee does not have the Tier II form, whether it can obtain the information from a facility at the request of the public is affected by the amount of chemical at the facility. It is required to obtain the Tier II information upon request and make it available to the public if the facility stored 10,000 pounds or more of the chemical during the preceding calendar year. 42 U.S.C. § 11022(e)(3)(B) (1988 & Supp. V 1993). When the amount stored is less, the SERC or the LEPC has the discretion to honor a public request to obtain a Tier II form from the facility, and the person making the request must include a statement of the general need for such information. 42 U.S.C. § 11022(e)(3)(C) (1988 & Supp. V 1993). It should be noted that any Tier II information already in the possession of the SERC or the LEPC must be made available to any person upon request and is not subject to the amount requirement or statement of need requirement. 42 U.S.C. §§ 11022(e)(3)(B), 11044(a) (1988 & Supp. V 1993). Return to text.

[65] Jeffrey T. Pender, High Penalties and Citizen Suits Await Small Businesses Unaware of EPCRA Reporting Requirements, CORP. COUNS. REV. 81, 92-93 (May 1991). Return to text.

[66] 42 U.S.C. § 11023 (1988 & Supp. V 1993). Return to text.

[67] 42 U.S.C. § 11023(j) (1988 & Supp. V 1993). This database is to be made accessible to any person at cost via computer telecommunications. Id. The EPA has fulfilled this on-line access requirement by incorporating the TRI database into the National Library of Medicine (NLM) TOXNET system. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 1992 TOXICS RELEASE INVENTORY: PUBLIC DATA RELEASE, at B-2 (April 1994) (745-R-94-001) [hereinafter 1992 TRI REPORT]. Included on TOXNET is the Integrated Risk Information System (IRIS) which contains health risk assessment and adverse health effects information summaries from various EPA programs. Id. The nonprofit organizations OMB Watch and the Unison Institute, which are essentially public interest environmental organizations, have created an on-line computer news service and database concerned with issues arising out of matters related to EPCRA. Id. There is no charge for access to this news service and database, which contains data sets that can be linked to facilitate integrated analysis and provides access to the complete TRI for all reporting years. Id.

The EPA has incorporated the TRI data onto electronic media which the public can obtain from the Government Printing Office in the forms of CD-ROM, diskettes and magnetic tapes. Id. at B-2, B-3. The Department of Commerce has incorporated the TRI data on a CD-ROM they make available quarterly and which also includes environmental and socio-economic data from fifteen federal agencies. Id. at B-3.

Printed media which contains the TRI data includes microfiche that incorporates TRI data from the 1987 to the 1990 reporting years. Id. The EPA publishes detailed annual reports which present the TRI data received and reported for particular years. These reports provide summaries, analyses and comparison of TRI data year by year, including summarization of data on total releases and transfers of the TRI chemicals; geographic distribution of the TRI releases and transfers; industrial patterns of releases and transfers; and the interstate and intrastate transport of wastes and other kinds of analysis. The first report was issued in 1989 and covered the 1987 TRI data, representing the typical two year lag between the time industry is to submit their annual toxic release information and EPA's publication of reports.

The EPA has developed other databases or electronic bulletin boards to complement those previously mentioned. 1992 TRI REPORT, supra, at B-4. One is TRI-FACTS which complements TRI release data by providing information related to health and ecological effects and safety and handling information for these chemicals and which is available on the NLM TOXNET system, the TRI CD-ROM and printed format. Id. Another is the 313 Roadmap Database which was developed to assist TRI users to perform preliminary, site-specific exposure and risk assessments. Id.

The Government Printing Office provides an electronic bulletin board with TRI state specific data. Id. The EPA also provides telephone assistance services for use of the TRI data and other EPCRA matters. Id. at B-4, B-5. These include the TRI-US Service, in which specialists provide information about the TRI and access to the various data formats, and the EPCRA Hotline, which provides regulatory, policy, and technical assistance to federal agencies, local and state governments, the public, regulated community and other interested parties in response to questions concerning EPCRA. Id. Return to text.

[68] 42 U.S.C. § 11023(h) (1988 & Supp. V 1993). Return to text.

[69] Id. Return to text.

[70] H.R. REP. NO. 99-962, 99th Cong., 2d Sess. 292 (1986), reprinted in 1986 U.S.C.C.A.N. 3385. The accidental releases are included as part of the total releases of toxic chemicals the facility reports. Return to text.

[71] The EPA was required to publish a uniform toxic chemical release form by June 1, 1987. 42 U.S.C. § 11023(g)(1) (1988 & Supp. V 1993). Should the EPA fail to publish this form, a facility may submit the information by letter. Id. A citizen suit may be brought to require the EPA to publish the form. 42 U.S.C. § 11046(a)(1)(B)(iii) (1988 & Supp. V 1993). The EPA has published Form R. 40 C.F.R. § 372.85 (1995). "The most current version of EPA Form R . . . may be obtained by writing to the section 313 Document Distribution Center, P.O. Box 12505, Cincinnati, Ohio 45212." Id. Return to text.

[72] 42 U.S.C. § 11023(a) (1988 & Supp. V 1993). EPCRA does not require the form to be filed with SERCs or LEPCs, but a governor can designate these agencies to be the recipient for the form. Id. Return to text.

[73] This includes all toxic substances released into the air, discharged into rivers or streams, disposed on land at the site, injected into underground wells at the site or transported in waste water to public sewage treatment works. ENVIRONMENTAL PROTECTION AGENCY, TITLE III SECTION 313 RELEASE REPORTING GUIDANCE: ESTIMATING CHEMICAL RELEASES (EPA 560/4-88-004b, Jan. 1988). Return to text.

[74] 42 U.S.C. § 11023(g)(C)(iii)-(iv) (1988 & Supp. V 1993). More specifically, the form must:

(C) provide for submission of each of the following items of information for each list chemical known to be present at the facility:

(i) Whether the toxic chemical at the facility is manufactured, processed, or otherwise used, and the general category or categories of use of the chemical.

(ii) An estimate of the maximum amounts (in ranges) of the toxic chemical present at the facility during the preceding calendar year.

(iii) For each wastestream, the waste treatment or disposal methods employed, and an estimate of the treatment efficiency typically achieved by such methods for that wastestream.

(iv) The annual quantity of the toxic chemical entering each environmental medium.

42 U.S.C. § 11023(g)(1)(C)(i)-(iv) (1988 & Supp. V 1993). Return to text.

[75] 42 U.S.C. § 11023(g)(1)(C)(ii) (1988 & Supp. V 1993). EPCRA requires the establishment to use no more than existing, readily available data in fulfilling the information requirements for toxic chemical release forms. EPCRA does not require additional measurements or monitoring beyond that which is required under other provisions of EPCRA or other federal laws or regulations. 42 U.S.C. § 11023(g)(2) (1988 & Supp. V 1993). Return to text.

[76] 42 U.S.C. § 11023(a) (1988 & Supp. V 1993). Return to text.

[77] 42 U.S.C. § 11023(b)(1)(A) (1988 & Supp. V 1993). These SIC codes are primarily manufacturing facilities. These are the same SIC codes to which the MSDS requirement applies. See supra text accompanying note 49. These SIC industry categories are: food products (20); tobacco products (21); textile mill products (22); apparel and other finished products made from fabrics (23); lumber and wood products, except furniture (24); furniture and fixtures (25); paper and allied products (26); printing and publishing (27); chemicals and allied products (28); petroleum refining and related industries (29); rubber and miscellaneous plastics products (30); leather products (31); stone, clay, glass and concrete products (32); primary metals (33); fabricated metals, except machinery and transportation equipment (34); industrial and commercial machinery and computer equipment (35); electronic and electric equipment, except computer equipment (36); transportation equipment (37); measuring, analyzing and controlling equipment, photographic, metal and optical goods and watches and clocks (38); miscellaneous manufacturing (39). The EPA may add or delete SIC codes, but this authority is limited to SIC codes for facilities which manufacture, process or use toxic chemicals. 42 U.S.C. § 11023(b)(1)(B) (1988 & Supp. V 1993).

The EPA has the discretion to apply the toxic release reporting requirement to a particular facility, not just to SIC codes, acting on its own motion or at the request of a state, provided the addition of a particular facility is warranted on the basis of the toxicity of the chemical, proximity to other sites that release the toxic chemical or to population centers, the history of releases of the chemical at the facility, and other factors the agency deems appropriate. 42 U.S.C. § 11023(b)(2) (1988 & Supp. V 1993). Return to text.

[78] 42 U.S.C. § 11023(b)(1)(A) (1988 & Supp. V 1993). Return to text.

[79] 42 U.S.C. § 11023(f)(1) (1988 & Supp. V 1993). This section of EPCRA sets the threshold amounts as follows:

The Threshold amounts for purposes of reporting toxic chemicals under this section are as follows:

(A) With respect to a toxic chemical used at a facility, 10,000 pounds of the chemical per year.

(B) With respect to a toxic chemical manufactured or processed at a facility¾

* * *

(iii) For the form required to be submitted on or before July 1, 1990, and for

form thereafter, 25,000 pounds of the toxic chemical per year.

Id. Return to text.

[80] 42 U.S.C. § 11023(f)(1)(A) (1988 & Supp. V 1993). Return to text.

[81] 42 U.S.C. § 11023(f)(1)(B) (1988 & Supp. V 1993). The EPA has discretion to revise the thresholds and categories of industries subject to changed thresholds. 42 U.S.C. § 11023(f)(2) (1988 & Supp. V 1993). Return to text.

[82] The list is found in Committee Print Number 99-169 of the Senate Committee on Environment and Public Works and is entitled "Toxic Chemicals Subject to Section 313 of the Emergency Planning and Community Right to Know Act of 1986." 42 U.S.C. § 11023(c) (1988 & Supp. V 1993). This original list was created by combining chemical lists created under similar reporting laws in Maryland and New Jersey. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, TOXICS IN THE COMMUNITY, NATIONAL AND LOCAL PERSPECTIVES¾THE 1989 TOXICS RELEASE INVENTORY NATIONAL REPORT 80 (Sept. 1991) (EPA 560/4-91-014) [hereinafter 1989 TRI REPORT]. Return to text.

[83] 42 U.S.C. § 11023(d) (1988 & Supp. V 1993). The EPA can add a chemical to the list if it determines the chemical causes, or can reasonably be anticipated to cause, any of three problems: (1) significant adverse human health effects beyond the boundaries of the plant; (2) cancer, birth defects, serious or irreversible reproductive dysfunctions, neurological disorders, heritable genetic mutations, or other chronic effects, whether they occur inside or outside the boundaries of the plant; or (3) significant adverse effects on the environment. 42 U.S.C. § 11023(d)(2)(A)-(C) (1988 & Supp. V 1993). Chemicals capable of causing significant adverse environmental damage can make up no more than twenty-five percent of the chemicals on the list. 42 U.S.C. § 11023(d)(2)(C) (1988 & Supp. V 1993).

The EPA may delete a chemical from the list if it determines that none of the three effects mentioned are caused by it. 42 U.S.C. § 11023(d)(3) (1988 & Supp. V 1993). Any person may petition the EPA to add or delete a toxic chemical on the grounds that it is (for inclusion) or is not (for deletion) capable of significantly harming human health. 42 U.S.C. § 11023(e)(1) (1988 & Supp. V 1993). A state governor may petition the EPA to add or delete a chemical on the same criteria of health and environmental harms applying to the EPA's decision to add or delete chemicals. 42 U.S.C. § 11023(e)(2) (1988 & Supp. V 1993). Return to text.

[84] See infra note 427 and accompanying text for discussion of expansions in TRI chemicals. Return to text.

[85] Pub. L. No. 101-508, §§ 6601-6610, 104 Stat. 1388, 1388-21 to 1388-327 (codified at 42 U.S.C. §§ 13101-13109).

86 42 U.S.C. § 13101 (b) (1988 & Supp. V 1993). Return to text.

[87] E. Lynn Grayson, The Pollution Prevention Act of 1990: Emergence of a New Environmental Policy, 22 ELR (ELI) 10392 (June 1992). Pollution prevention, also known as "input pollution control," reduces or eliminates the input of pollutants and wastes into the environment. G. TYLER MILLER, JR., LIVING IN THE ENVIRONMENT: PRINCIPLES, CONNECTIONS, AND SOLUTIONS 16-18 (8th ed. 1994). Pollution prevention is concerned with the "front end" of toxic chemical production, seeking to reduce the use of toxic chemicals and the generation of toxic wastes at the point of origin. SANFORD LEWIS & MARCO KALTOFEN, THE NATIONAL TOXICS CAMPAIGN FUND, FROM POISON TO PREVENTION: A WHITE PAPER ON REPLACING HAZARDOUS WASTE FACILITY SITING WITH TOXICS REDUCTION i (1989). This approach is summarized by biologist Barry Commoner's "law of pollution prevention," in which he maintains that if you don't put something into the environment, it isn't there. MILLER, supra, at 16-18. The strategies for pollution prevention are embodied in the three R's of resource use: Reduce, Reuse, Recycle. Id.

Pollution control, also known as pollution cleanup and output pollution control, deals with pollutants once they have been generated or after they have already been introduced into the environment. Id. Pollution control involves "end of the pipe" solutions to dealing with pollution. Put another way, prevention avoids the use of chemicals and the creation of wastes, while control measures attempt to manage wastes after they have been created. CITIZENS FUND, POISONS IN OUR NEIGHBORHOODS: TOXIC POLLUTION IN THE UNITED STATES, Volume I, 17 (November 1993). The approach followed by most environmental regulation and by industry to date focuses on end of the pipe solutions, seeking to control the disposal or release of toxics once they become waste by-products rather than preventing or curtailing their production in the first place. LEWIS & KALTOFEN, supra, at i. Examples of pollution control include auto emission devices, sewage treatment, and landfills.

Environmentalists prefer pollution prevention over pollution cleanup because the latter is seen as temporary, removing pollutants from one part of the environment only to transfer it to another, and as more costly in the long run. Miller, supra, at 16-18. Return to text.

[88] Source reduction is viewed as the highest and best form of pollution prevention. Grayson, supra note 87, at 10392. The PPA favors source reduction. 42 U.S.C. §§ 13101(b), 13102(5)(A)-(B) (1988 & Supp. V 1993). According to the PPA, "[s]ource reduction is fundamentally different and more desirable than waste management and pollution control" and "a first step in preventing pollution." 42 U.S.C. § 13101(a)(4)-(5) (1988 & Supp. V 1993).

The Act defined "source reduction" as any practice which:

(i) reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal; and

(ii) reduces the hazards to public health and the environment associated with the release of such substances, pollutants or contaminants.

42 U.S.C. § 13102(5)(A)(i)-(ii) (1988 & Supp. V 1993).

Congress also characterized source reduction as federal environmental policy in the PPA:

The Congress hereby declares it to be the national policy of the United States that pollution should be prevented or reduced at the source whenever feasible; pollution that cannot be prevented should be recycled in an environmentally safe manner, whenever feasible; pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible; and disposal or other release into the environment should be employed only as a last resort and should be conducted in an environmentally safe manner.

42 U.S.C. § 13101(b) (1988 & Supp. V 1993). Return to text.

[89] 42 U.S.C. § 13106 (1988 & Supp. V 1993). See also 56 Fed. Reg. 48,475 (Sept. 25, 1991) (proposed changes in the EPA rules for toxic chemical release reporting pursuant to EPCRA). Return to text.

[90] 42 U.S.C. § 13106(b)(7) (1988 & Supp. V 1993). Return to text.

[91] 42 U.S.C. § 13106(b)(2) (1988 & Supp. V 1993). Return to text.

[92] 42 U.S.C. § 13106(b)(1) (1988 & Supp. V 1993). Return to text.

[93] 42 U.S.C. § 13106(b)(3) (1988 & Supp. V 1993). Return to text.

[94] 42 U.S.C. § 13106(a) (1988 & Supp. V 1993). Return to text.

[95] 42 U.S.C. § 11042 (1988 & Supp. V 1993). Return to text.

[96] This includes the chemical name and other specific identification. 42 U.S.C. § 11042(a)(1)(A) (1988 & Supp. V 1993). The term "other specific identification" refers to information other than the name of the chemical, such as the Chemical Abstracts Service (CAS) number, which uniquely identifies the chemical. 40 C.F.R. § 350.1 (1995). Return to text.

[97] 42 U.S.C. § 11042(a)(1)(B) (1988 & Supp. V 1993). Return to text.

[98] The trade secret provision expressly applies to EPCRA provisions concerning emergency response plans, material data safety sheets, hazardous chemical inventory forms, toxic chemical release forms and follow-up emergency notices. 42 U.S.C. § 11042(a)(1) (1988 & Supp. V 1993). It omits from mention, and thereby protection, section 304 of EPCRA, which requires facilities to make emergency release reports of hazardous substances. Id. Return to text.

[99] 42 U.S.C. § 11042(b)(1)-(4) (1988 & Supp. V 1993). Return to text.

[100] 42 U.S.C. § 11042(a)(3) (1988 & Supp. V 1993). Return to text.

[101] 42 U.S.C. §§ 11042(e), 11043 (1988 & Supp. V 1993). In order to get trade secret information, the health professional must make a written request for it to the facility withholding the information. 42 U.S.C. § 11043(a) (1988 & Supp. V 1993). Except in the instance of a medical emergency, the written request must be accompanied by a written statement of need, and the health professional must enter into a confidentiality agreement limiting the use and disclosure of the information. 42 U.S.C. § 11043(a)-(d) (1988 & Supp. V 1993). In the case of a medical emergency where the specific chemical identity is necessary for or will assist in emergency or first-aid diagnosis or treatment, the physician is entitled to the information without a written statement of need. 42 U.S.C. § 11043(b) (1988 & Supp. V 1993). Return to text.

[102] 42 U.S.C. § 11042(g) (1988 & Supp. V 1993). If the EPA refuses or fails to provide this information, the state can commence an action in federal court to compel the EPA to do so. 42 U.S.C. § 11046(a)(2)(C) (1988 & Supp. V 1993). Return to text.

[103] 42 U.S.C. § 11042(d) (1988 & Supp. V 1993). If the EPA fails to respond to the petition within nine months, a suit can be brought against it to compel it to come to a decision. 42 U.S.C. § 11046(a)(1)(B)(vi) (1988 & Supp. V 1993). The EPA can initiate a review of a trade secret claim on its own petition. 42 U.S.C. § 11042(d)(1) (1988 & Supp. V 1993). Return to text.

[104] 42 U.S.C. §§ 11041(a)(1), 11041(a)(3) (1988 & Supp. V 1993). Return to text.

[105] 42 U.S.C. § 11045(a) (1988 & Supp. V 1993). Return to text.

[106] Id. Return to text.

[107] 42 U.S.C.§ 11045(b) (1988 & Supp. V 1993). Return to text.

[108] It may choose one or the other administrative penalty to pursue against a violator of the emergency notification requirements, but not both. Return to text.

[109] 42 U.S.C. § 11045(b)(1) (1988 & Supp. V 1993). For a Class I administrative penalty, the person accused of the violation must be given notice and opportunity for a hearing. 42 U.S.C. § 11045(b)(1)(B) (1988 & Supp. V 1993). Return to text.

[110] 42 U.S.C. § 11045(b)(2) (1988 & Supp. V 1993). A formal hearing must be instituted by the EPA and concluded before a Class II penalty can be assessed by the agency. See 42 U.S.C. § 11045(b)(2) (1988 & Supp. V 1993). Another difference between the kinds of penalties is that the Class I administrative penalty is a single monetary penalty assessed on a per violation basis while the Class II monetary penalty is assessed on a per day basis and escalates with subsequent violations. The Class II administrative penalty includes a monetary penalty of up to $25,000 per violation per day for the first violation, and up to $75,000 per day per violation for subsequent violations. Id. Return to text.

[111] 42 U.S.C. § 11045(c)(4) (1988 & Supp. V 1993). Return to text.

[112] 42 U.S.C. § 11045(c)(2)-(3) (1988 & Supp. V 1993). Return to text.

[113] 42 U.S.C. § 11045(c)(1), (3) (1988 & Supp. V 1993). The penalty is assessed on a per day basis, which means each day a violation continues it is considered a separate violation. Id. Return to text.

[114] 42 U.S.C. § 11045(d)(1) (1988 & Supp. V 1993). The penalty is for each claim and is not on a per day basis. Id. § 11045(d)(1)(A). Return to text.

[115] 42 U.S.C. § 11045(b)(4) (1988 & Supp. V 1993). Criminal penalties may be imposed for knowing and willful violations of the emergency notification requirements. For the first conviction, the criminal penalties include a fine of up to $25,000 or a prison term of up to two years, or both. Id. In the case of a second and subsequent criminal convictions, the maximum fine increases to $50,000, and the maximum prison term increases to five years. Id. Return to text.

[116] A criminal penalty of up to $20,000 or imprisonment of not more than one year, or both, is provided for a knowing or willful disclosure of trade secret information. 42 U.S.C. § 11045(d)(2) (1988 & Supp. V 1993). Return to text.

[117] 42 U.S.C. § 11046 (1988 & Supp. V 1993). Return to text.

[118] 42 U.S.C. § 11046(a)(1)(A) (1988 & Supp. V 1993). Return to text.

[119] 42 U.S.C. § 11046(a)(1)(A)(i)-(iv) (1988 & Supp. V 1993). Return to text.

[120] 42 U.S.C. § 11046(a)(1)(B)(i)-(iv) (1988 & Supp. V 1993). Return to text.

[121] 42 U.S.C. §§ 11044(a), 11046(a)(1)(C) (1988 & Supp. V 1993). Return to text.

[122] 42 U.S.C. § 11046(a)(1)(D) (1988 & Supp. V 1993). Return to text.

[123] 42 U.S.C. § 11046(a)(2)(A)(i)-(iv) (1988 & Supp. V 1993). Return to text.

[124] 42 U.S.C. § 11046(a)(2)(B) (1988 & Supp. V 1993). Return to text.

[125] 42 U.S.C. § 11046(a)(2)(C) (1988 & Supp. V 1993). Return to text.

[126] 42 U.S.C. § 11046(f) (1988 & Supp. V 1993). Return to text.

[127] Only the specific identities of the chemicals designated as trade secrets may be withheld. 42 U.S.C. § 11042(a)(1)(A) (1988 & Supp. V 1993). Return to text.

[128] 42 U.S.C. § 11044(a) (1988 & Supp. V 1993). Return to text.

[129] 42 U.S.C. § 11044(b) (1988 & Supp. V 1993). Return to text.

[130] H.R. REP. NO. 99-253(V), 99th Cong., 2d Sess. 308 (1986), reprinted in 1986 U.S.C.C.A.N. 3401 (referring to section 313(j) of EPCRA, now codified at 42 U.S.C. § 11023(j) (1988 & Supp. V 1993)). See also 42 U.S.C. § 11043(h) (1988 & Supp. V 1993) (stating that the toxic chemical release forms are intended to provide information to the public). Return to text.

[131] Pender, supra note 65, at 81, 102 n.125 (citing ENVIRONMENTAL PROTECTION AGENCY, MUNICIPALITIES, SMALL BUSINESS, AND AGRICULTURE—THE CHALLENGE OF MEETING ENVIRONMENTAL RESPONSIBILITIES (Pub. L. No. 230-09/88-037, 1988)). The EPA estimated that industry compliance with the hazardous chemical reporting requirements under sections 311 and 312 of EPCRA would cost $238 million the first year, $303 million the second, $217 million the third and stabilize at $64 million in subsequent years. Hazardous Chemical Reporting, Emergency Planning and Community Right-to-Know Programs, Proposed Rule, 52 Fed. Reg. 2836, 2842 (to be codified at 40 C.F.R. § 370 (reprinted in 17 Env't Rep. (BNA) 1684, 1690 (Jan. 30, 1987)). Return to text.

[132] Pender, supra note 65, at 81, 102 n.125. Return to text.

[133] Kevin L. Bromberg, Right-to-Know: Much Pain, Little Gain, 5 ENVTL. F. 24 (Sept./Oct. 1988). Bromberg wrote this article while Assistant Chief Counsel for Energy and Environment at the Office of Advocacy of the Small Business Administration. Return to text.

[134] 40 C.F.R. § 370.20(b)(1)-(3). The EPA decided not to set a zero-pound threshold for the third and subsequent years pending further consideration and comment on the possibility of setting a nonzero threshold such as 500 pounds. Bromberg, supra note 133, at 38, 50. Return to text.

[135] SBA Warns EPA that Right-to-Know Proposal Will Have 'Detrimental' Effect on Small Firms, 17 Env't Rep. (BNA) 2148 (Apr. 24, 1987). Return to text.

[136] Id. The SBA requested that the EPA alter the thresholds to 20,000 pounds the first year and 10,000 pounds thereafter for manufacturing facilities. Id. The SBA also proposed a much higher threshold for non-manufacturing operations of 50,000 pounds, which would effectively exempt service and retail businesses. Id. Return to text.

[137] SBA Urges Exemption for Small Firms from Community Right-to-Know Reporting, 18 Env't Rep. (BNA) 916 (July 31, 1987). This was the position of SBA Chief Counsel for Advocacy, Frank Swain, in testimony made at an EPA public meeting. Id. Swain contended that small firms collectively contribute only ten to fifteen percent of all toxic emissions but that to report them will impose costs of nine to twenty-three percent of the median profits of manufacturers with ten to forty-nine employees. Id. at 916. Return to text.

[138] EPCRA required facilities that used more than 10,000 pounds of a listed toxic chemical to report releases of the chemical in the TRI annual forms. 42 U.S.C. § 11023(f)(1)(A) (1988 & Supp. V 1993). It phased in thresholds for TRI reporting for facilities that made or processed toxic chemicals, setting the thresholds at 75,000 pounds for the 1987 releases, 50,000 pounds for the 1988 releases, and 25,000 pounds for the 1989 releases. 42 U.S.C. § 11023(f)(1)(B)(i)-(iii) (1988 & Supp. V 1993). The EPA had the discretion to revise the threshold quantities and covered SIC categories. 42 U.S.C. § 11023(f)(2) (1988 & Supp. V 1993).

The risk-based analysis the SBA called for would have used thresholds based upon the anticipated or actual toxic risks posed by specific chemicals and not on an arbitrary amount of chemicals used or made, although the SBA's counsel conceded this could be infeasible for certain chemicals for which there was insufficient information on toxicity. SBA Urges Exemption for Small Firms from Community Right-to-Know Reporting, 18 Env't Rep. (BNA) 916, 917 (July 31, 1987). The emission based requirement for the TRI reporting advocated by the SBA would require reporting only from firms that released a specified minimum amount of a covered chemical. Id. Return to text.

[139] The SBA contended that small firms collectively contributed only ten to fifteen percent of all toxic emissions. Id. It also argued that EPA studies revealed that of more than 10,000 plants in four regions in the United States, no more than two small plants (less than 100 employees) could be identified as posing significant toxics air risks. Bromberg, supra note 133, at 24, 30. Return to text.

[140] The EPA estimated that the costs to SERCs, LEPCs, and fire departments to administer the hazardous chemical reporting requirements under sections 311 and 312 of EPCRA would be $34 million the first year, $24 million the second, $27 million the third and stabilize at $24 million in subsequent years. EPA Proposed Uniform Procedures for Complying with Requirements for Hazardous Chemical Reporting Under Title III of Superfund Law, 52 Fed. Reg. 2836, 2843 (codified in 40 C.F.R. § 370) (reprinted in 17 Env't Rep. (BNA) 1684, 1690 (Jan. 30, 1987)). Return to text.

[141] 42 U.S.C. §§ 11001, 11003 (1988 & Supp. V 1993). The SERCs are responsible for designating local emergency planning districts, appointing the LEPCs for each district, and supervising and coordinating their activities. Id. § 11001. The LEPCs in turn prepare the emer gency plans. Id. § 11003. Return to text.

[142] Facilities that make, use or process chemicals above thresholds established under the legislation, have 10 or more full time employees, and fall under the SIC manufacturing codes 20 through 39 are required to submit their TRI inventory forms to both EPA and the states. 42 U.S.C. §§ 11023(a), (b)(1)(A), (f) (1988 & Supp. V 1993). The EPA estimates there are approximately 180,000 facilities in SIC Codes 20-39. ENVIRONMENTAL PROTECTION AGENCY, REQUEST FOR PUBLIC COMMENT ON SMALL BUSINESS ADMINISTRATION PETITION TO REVIEW REPORTING THRESHOLD UNDER COMMUNITY RIGHT- TO-KNOW LAW, 57 Fed. Reg. 48706, 48708 (to be codified at 40 C.F.R. § 372) (reprinted in 23 Env't Rep. (BNA) 1698, 1700 (Oct. 30, 1992)) [hereinafter SBA PETITION]. Return to text.

[143] The SERCs and LEPCs receive notification from facilities that have extremely hazardous substances above threshold planning quantities, so that they can participate in emergency planning. 42 U.S.C. § 11002(c) (1988 & Supp. V 1993). The SERCs and LEPCs receive the emergency release notifications, in which facilities are required to notify them of accidental releases of hazardous substances and provide written reports on actions taken and medical effects. 42 U.S.C. §§ 11004(b), (c) (1988 & Supp. V 1993). The SERCs, LEPCs, and fire departments receive the MSDSs or lists of MSDS chemicals and the emergency and hazardous chemical inventory forms from facilities. 42 U.S.C. §§ 11021, 11022 (1988 & Supp. V 1993). Return to text.

[144] Localities Not Benefiting Fully From Right-To-Know Law, Texas Study Says, 19 Env't Rep. (BNA) 745 (Aug. 26, 1988). Return to text.

[145] Fire Chief Feels Frustrated in Effort to Form Clearinghouse on Chemical Data, 17 Env't Rep. (BNA) 2051 (Apr. 3, 1987). Return to text.

[146] Id. Return to text.

[147] Id. Return to text.

[148] Pender, supra note 65, at 81, 102. Return to text.

[149] N.J. STAT. ANN. §§ 34:5A-1 to -31 (West 1988); N.J. ADMIN. CODE tit. 7, §§ 1G-1.1 to -7.10 (1984 & Supp. 1988); N.J. ADMIN. CODE, tit. 8, §§ 59-1.1 to -10.3 (1984 & Supp. 1986). Return to text.

[150] Jorge H. Berkowitz, The Law and the Promise, 5 ENVTL. F. 24, 28 (Sept./Oct. 1988). The assistant director in charge of release prevention and emergency response for the New Jersey Department of Environmental Protection noted EPCRA's emergency planning provisions were similar in many respects to New Jersey's Toxics Catastrophe Prevention Act, enacted several months earlier. State Officials See Problems Ahead in Meshing State, Federal Right-to-Know Laws, 17 Env't Rep. (BNA) 2131, 2132 (Apr. 17, 1987) [hereinafter State Officials]. He too declared that for EPCRA "[f]unding is a major problem." Id. The only explicit authorization of funds in EPCRA was $5 million each fiscal year through 1990 for "training grants" to state and local emergency planning and response programs. 42 U.S.C. § 11005 (1988 & Supp. V 1993). There was no guarantee that Congress would actually appropriate or the executive branch would spend this small amount. See also 42 U.S.C. § 11050 (1988 & Supp. V 1993), which does not authorize a specific amount for EPCRA but merely provides that Congress may authorize such sums "as may be necessary" to carry out the law. Compare with 42 U.S.C. § 13109 (1988 & Supp. V 1993), the funding authorization provision of the Pollution Prevention Act, which authorizes up to $8 million to the EPA for each of the fiscal years 1991, 1992 and 1993 to carry out the law and $8 million for each of these fiscal years for grants to the states. Return to text.

[151] Berkowitz, supra note 150, at 28 (declaring the EPA's long-term commitment to EPCRA was questionable, its funding for it was inadequate, that EPCRA was a low agency priority, and urging the EPA to provide more spirit and leadership for the program); SBA Warns EPA that Right-To-Know Proposal Will Have 'Detrimental' Effect on Small Firms, 17 Env't Rep. (BNA) 2148 (Apr. 24, 1987) (quoting a comment from the Washington Department of Ecology that "[w]ithout federal funding and technical support, the intent of Title III will probably not be accomplished"). See also When the Going Got Tough . . ., 5 ENVTL. F. 26, 32-33 (Sept./Oct. 1988). Return to text.

[152] Environmental Group Asks EPA to Revise Proposed Rule on Claiming Trade Secrets, 18 Env't Rep. (BNA) 1818 (Dec. 4, 1987). The Natural Resources Defense Council (NRDC) claimed in late 1987 that EPA's proposed rule on trade secrets indicated it was "bending over backwards" to allow industry to withhold data. Id. It stated the EPA proposal should be reworked because it thwarted congressional intent and undermined public access to information. Id. See 40 C.F.R. § 350 (listing the final EPA rules on trade secrets). See also Procedures for Claiming Confidentiality of Trade Secret Information Issued by EPA, 19 Env't Rep. (BNA) 469-70 (Aug. 5, 1988). Return to text.

[153] Joel R. Burcat & Arthur K. Hoffman, The Emergency Planning and Community Right-to-Know Act of 1986: An Explanation of Title III of SARA, 18 Envtl. L. Rep. (Envtl. L. Inst.) 10007, 10027 (Jan. 1988); see also Carla E. Hjelm, Environmental Law I: Worker and Community Right-to-Know Laws, 1987 ANN. SURV. AM. L. 701, 714 (1987). Return to text.

[154] TSCA Confidentiality Claims May be Lost with Community Right-To-Know Law, ACS Told, 17 Env't Rep. (BNA) 2098 (Apr. 10, 1987) [hereinafter TSCA Confidentiality]. Return to text.

[155] Burcat & Hoffman, supra note 153, at 10027; see also Hjelm, supra note 153, at 714. Return to text.

[156] TSCA Confidentiality, supra note 154 at 2098. The Toxic Substances Control Act is codified at 15 U.S.C. §§ 2601-2671 (1994). The Act provides for a procedure allowing data submitted to the EPA under the TSCA to remain confidential. 15 U.S.C. § 2613(c) (1994). Return to text.

[157] TSCA Confidentiality, supra note 154, at 2098. Return to text.

[158] Hjelm, supra note 153, at 714 n.108 (citing Emergency Planning, Toxics L. Rep. (BNA) No. 2 at 197 (July 15, 1987)). Return to text.

[159] BNA Sponsors National Conference on Managing SARA Title III Lawsuits, 19 Env't Rep. (BNA) 3 (May 6, 1988). Return to text.

[160] Speakers Analyze Implications of Title III, Say Information May Provide Basis for Lawsuits, 19 Env't Rep. (BNA) 78 (May 20, 1988) [hereinafter Speakers Analyze Implications]. Return to text.

[161] Id. Return to text.

[162] Id. See also TSCA Confidentiality, supra note 154 at 2098 (reporting a law professor informing a symposium at the American Chemical Society national meeting that TRI data may be used by environmental or citizen groups in citizen suits). Return to text.

[163] Pender, supra note 65, at 81, 106 (May 1991); see also Speakers Analyze Implications, supra note 160, at 78 (predicting that there may be 'panic in the streets' when certain information is released to the public for the first time). Return to text.

[164] Pender, supra note 65, at 105, 106; Emergency Releases Most Likely Target of Initial Enforcement, State Official Says, 18 Env't Rep. (BNA) 2241 (Feb. 26, 1988) (reporting that the director of the North Carolina Right-to-Know Division considered violations of the section 304 emergency release reporting requirements as the earliest kinds of enforcement actions likely to be taken by government and that citizen suits "are potentially the biggest enforcement mechanism" for section 304 violations). Return to text.

[165] EPA Announces Final Rule Under Title III Governing Toxic Chemical Release Reporting, 18 Env't Rep. (BNA) 2131 (Feb. 12, 1988). Return to text.

[166] Nicholas C. Yost & John M. Schultz, The Chemicals Among Us, 4 WASHINGTON LAWYER 24, 55 (Mar./Apr. 1990). Return to text.

[167] BNA Sponsors National Conference on Managing SARA Title III Lawsuits, 19 Env't Rep. (BNA) 3 (Apr. 6, 1988). Return to text.

[168] See generally Pender, supra note 65, at 104-09. Return to text.

[169] EPA Developing Strategy That May Use States, Citizens to Help Enforce EPCRA, 18 Env't Rep. (BNA) 1818-19 (Dec. 4, 1987) (reporting an EPA official stating that, during the first year of EPCRA, enforcement should be directed at larger companies that present the greatest threat to the public health and the environment, keeping with the key goal of the legislation, namely to prevent Bhopal-like disasters). Return to text.

[170] Jayne S.A. Pritchard, A Closer Look at Title III of SARA: Emergency Planning and Community Right-To-Know Act of 1986, 6 PACE ENVTL. L. REV. 203, 246-50 (1988). Contra Right-to-Know Chemical Data Both Boon, Burden to Defendants in Toxic Tort Lawsuits, 20 Env't Rep. (BNA) 199-200 (June 2, 1989) (reporting remarks of toxic tort plaintiff attorney, Anthony Z. Roisman, at an EPCRA seminar sponsored by the ABA, that EPCRA data will not play a crucial role in current toxic tort lawsuits but may be helpful for toxic tort cases in the future) [hereinafter Right-to-Know Chemical Data]. Return to text.

[171] Speakers Analyze Implications, supra note 160, at 78. Return to text.

[172] Pritchard, supra note 170, at 203, 246-50; see also Yost & Schultz, supra note 166, at 55-56. Return to text.

[173] Speakers Analyze Implications, supra note 160, at 78; see also Pritchard, supra note 170, at 246; Yost & Schultz, supra note 166, at 55-56. Return to text.

[174] Right-to-Know Chemical Data, supra note 170, at 199-200 (reporting remarks of a corporate toxic tort defense attorney). Return to text.

[175] Burcat & Hoffman, supra note 153, at 10027. Return to text.

[176] Emergency Releases Most Likely Target of Initial Enforcement, State Official Says, 18 Env't Rep. (BNA) 2241 (Feb. 26, 1988). Return to text.

[177] TSCA Confidentiality, supra note 154, at 2098. Return to text.

[178] 42 U.S.C. § 11021 (1988 & Supp. V 1993). Return to text.

[179] Burcat & Hoffman, supra note 153, at 10027. Return to text.

[180] Id. Return to text.

[181] State Officials, supra note 150, at 2131, 2132. Return to text.

[182] See Portia C. Smith, The Preemptive Effect of the Emergency Planning and Community Right-to-Know Act and OSHA's Hazard Communication Standard, 67 WASH. U. L.Q. 1153, 1156, 1167-73 (1989); Hjelm, supra note 153, at 714-25; see also Federal Pre-emption of Right-to-Know Laws Unclear When Both Workers, Public Covered, 18 Env't Rep. (BNA) 1626 (Oct. 30, 1987) (noting that while EPCRA specifically says it does not preempt community right-to-know requirements en acted by states, OSHA says with equal clarity, that it does preempt state worker right-to-know regulations). Return to text.

[183] EPA Official Advises Industry to Begin Local Public Dialogue Before Releasing Data, 17 Env't Rep. (BNA) 1799, 1800 (Feb. 20, 1987) [hereinafter EPA Official]. Return to text.

[184] Id. Return to text.

[185] Id. Return to text.

[186] CMA Advises Firms to Go Beyond Compliance with Title III Mandates to Avoid Problems, 18 Env't Rep. (BNA) 1327 (Sept. 11, 1987). Return to text.

[187] Compliance with Right-to-Know Advised Although Payoff is Not Immediately Obvious, 18 Env't Rep. (BNA) 1035 (Aug. 14, 1987). Return to text.

[188] Du Pont Chairman Sees Need to Build Consensus on 'Right Response' to Environmental Problems, 17 Env't Rep. (BNA) 1227 (Nov. 21, 1986). Return to text.

[189] Speakers Analyze Implications, supra note 160, at 78. Return to text.

[190] John Moore, the EPA assistant administrator for pesticides and toxic substances, told a meeting sponsored by the American Institute of Chemical Engineers that EPCRA information will "haunt the dialogue between those people making and handling chemicals and the communities where they do so." EPA Official, supra note 183, at 1799. He noted that because of past chemical incidents of the type which inspired EPCRA that "the public is nervous and has greater unease about what is going on in its backyard." Id. Charles Elkins, head of the EPA's Office of Toxic Substances, told a meeting of the Chemical Specialties Manufacturers Association that citizens will be surprised when they find out that neighborhood companies are discharging tons of toxic chemicals, and will assume they have been exposed and will encounter serious health problems as a result. Prepare Now for Public Questions on Emissions Data, EPA Official Recommends, 18 Env't Rep. (BNA) 1561-62 (Oct. 16, 1987) [hereinafter Prepare Now]. Return to text.

[191] Speakers Analyze Implications, supra note 160, at 78 (emphasis added). Return to text.

[192] Gene I. Matsumoto, Confrontation or Compromise, 5 ENVTL. F. 25, 31 (Sept./Oct. 1988). Return to text.

[193] See Prepare Now, supra note 190, at 1561; CMA Advises Firms to Go Beyond Compliance with Title III Mandates to Avoid Problems, 18 Env't Rep. (BNA) 1327, (Sept. 11, 1987); EPA Official, supra note 183, at 1799; Du Pont Chairman Sees Need to Build Consensus on 'Right Response' to Environmental Problems, 17 Env't Rep. (BNA) 1227 (Nov. 21, 1989). Return to text.

[194] The EPA has issued rules for trade secret information. 40 C.F.R. Part 350 (1995). Return to text.

[195] UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, THE TOXICS RELEASE INVENTORY: A NATIONAL PERSPECTIVE, 1987, at 66-67 (June 1989) (EPA 560/4-89-005) (representing about 0.06 percent of all forms and 0.01 percent of all releases) [hereinafter 1987 TRI REPORT]. Return to text.

[196] TSCA Confidentiality, supra note 154, at 2098. Return to text.

[197] New Jersey and Massachusetts both require industry to report materials accounting (MA) data to the state agencies, also known as "mass balance" information. EPA OFFICE OF POLLUTION PREVENTION AND TOXICS: ISSUES PAPER EXPANSION OF THE TOXICS RELEASE INVENTORY (TRI) TO GATHER CHEMICAL USE INFORMATION: TRI-PHASE 3: USE EXPANSION, available in RTK-NET, Entry No. 6597, Oct. 19, 1994. Mass balance is an engineering term for a procedure that identifies and compares all chemical inputs at a facility with the outputs and accumulations. Id. Proponents of mass balance type information claim these procedures provide an important ledger-sheet which serves as a means to check on the TRI estimates, and that chemical inputs and outputs are themselves a right-to-know issue. Id. Opponents of including this type of information questioned the need for information that went beyond release data, and they expressed concerns over trade secrets. Id. Both Massachusetts and New Jersey allow businesses to withhold MA data as "Confidential Business Information" (CBI), but report that they made CBI claims for MA data at a rate of less than one percent of the time. Id. See also Memorandum from Paul Orum, Working Group Coordinator, to Interested Activists, Right to Know More Campaign, July 11, 1991, available in RTK-NET, Entry No. 1760 (confirming that less than one percent of the data submitted under the New Jersey law was claimed to be confidential). Return to text.

[198] Ohio Chamber of Commerce v. State Emergency Response Comm'n, 597 N.E.2d 487 (Ohio 1992). The Ohio Chamber of Commerce and tire-maker B.F. Goodrich challenged additional requirements for hazardous chemical inventory reporting imposed by the state pursuant to its own right-to-know statute meant to implement EPCRA. See OHIO REV. CODE ANN. § 3750 (Baldwin 1995). According to the Chamber and B.F. Goodrich, these requirements were unlawful because they were "substantially more stringent" than those of the federal program, raising the issue of the degree to which, if any, EPCRA preempts state and local laws. Ohio Chamber, 597 N.E.2d at 489. Under EPCRA regulations, states are not required to use federal forms for Section 313 hazardous chemical inventory reporting, but instead can create and use their own so long as they contain information identical to that in the federal form. 40 C.F.R. §§ 370.40(a), 370.41(a) (cited in Ohio Chamber, 597 N.E.2d at 490.) The additional requirement under challenge was that the Ohio regulations also required facilities to submit a map showing the location of hazardous chemicals and substances attached to the reporting form. OHIO ADMIN. CODE § 3750-30-20- (F)(4), (H)(7) (cited in Ohio Chamber, 597 N.E.2d at 489.)

The Ohio Supreme Court construed both the state right-to-know law and EPCRA as allowing the Ohio SERC to promulgate rules that exceed the reporting requirements of EPCRA. First, it observed that language in the state law directed the Ohio SERC to "adopt rules . . . that are consistent with and equivalent in scope, content, and coverage to [EPCRA]." Ohio Chamber, 597 N.E.2d at 489 (citing and quoting OHIO REV. CODE ANN § 3750.02(b)(1) (Baldwin 1995)) (emphasis added). According to the court, this prescribed only minimum regulatory requirements and did not inhibit the SERC from adopting rules more stringent than those required by EPCRA. Id. Ohio Chamber noted that EPCRA's section 321(a) expressly provided it did not preempt state or local law and that section 321(b), "Effect on MSDS requirements," anticipated state and local authorities would expand upon federal requirements and require location information for the MSDS based hazardous chemical reporting. Id. at 490. The court quoted EPCRA section 321(b), which in part stated:

In addition, a State or locality may require the submission of information which is supple mental to the information required on the data sheet (including information on the location and quantity of hazardous chemicals present at the facility), through additional sheets attached to the data sheet or such other means as the State or locality deems appropriate.

Id. (emphasis added).

The Ohio Supreme Court also cited several EPA policy statements which encouraged state flexibility in implementing EPCRA and supplementing the requirements of federal regulation. Id. at 490-91 (quoting 52 F.R. 38357 (1987)). The court finally observed that the interests of the business community in opposing the map requirement specifying the location of hazardous chemical at plants did not compare favorably with the public interest. It noted that the main reason for the challenge to the map requirement was to avoid the expense of preparing a map. Id. at 491. The court declared that the usefulness and advantages of the map were "indisput able," and that identifying the location of hazardous chemicals could reduce the risks to emergency personnel and "may even save lives." Id. at 492. Return to text.

[199] These states included Wisconsin [Governor Signs Right-to-Know Statute Giving State Authority to Enforce Federal Law, 19 Env't Rep. (BNA) 50 (May 13, 1988)]; New Jersey [Florio Signs Pollution Prevention Bill with Goal to Cut Hazardous Releases by Half, 22 Env't Rep. (BNA) 1035 (Aug. 9, 1991)]; and Massachusetts [All Funding Eliminated by Agency for Right-to-Know Programs in State, 20 Env't Rep. (BNA) 805 (Aug. 8, 1989)]. Return to text.

[200] This included both the section 313 TRI reporting requirements and the sections 311 and 312 MSDS and chemical use inventory requirements, respectively. The SBA asked the EPA to adopt risk-based or emissions-based requirements for TRI reporting rather than amount based. SBA Urges Exemption for Small Firms from Community Right-to-Know Reporting, 18 Env't Rep. (BNA) 916 (July 31, 1987). For section 311 and 312 reporting, the SBA advocated increasing the threshold amount levels for reporting which would result in freeing most small businesses from reporting. SBA Warns EPA that Right-to-Know Proposal Will Have 'Detrimental' Effect on Small Firms, 17 Env't Rep. (BNA) 2148 (Apr. 24, 1987). Return to text.

[201] 42 U.S.C. § 11023(b)(1)(A) (1988 & Supp. V 1993). The EPA estimates that there are approximately 180,000 facilities in the SIC codes 20-39, and 23,000 facilities actually reporting under the current law. SBA PETITION, supra note 142, at 1700. The EPA pointed out that the current 10 employee limitation and activity thresholds in EPCRA excluded eighty percent of the universe of reporting facilities. SBA PETITION, supra note 142, at 1700. Return to text.

[202] 1991 RIGHT TO KNOW, FACT SHEET # 3, available in RTK-NET, Entry No. 220 (May 30, 1991). "For example, [a] Maryland company with only 12 employees reported that they emitted over 100,000 pounds of toxics into the air and shipped off-site over 500,000 pounds of hazardous waste." Id. "If the company had less than 10 employees, their toxic releases would have remained undisclosed to the public." Id. Return to text.

[203] EPA Announces Final Rule Under Title III Governing Toxic Chemical Release Reporting, 18 Env't Rep. (BNA) 2131 (Feb. 12, 1988). The provision permitted a facility which released "less than 1,000 pounds of a listed toxic chemical in a given year to" merely check a box on the TRI "form representing one of three release ranges rather than coming up with an exact figure" for releases. Id. Return to text.

[204] See Bromberg, supra note 133 and accompanying text; Group Gives EPA Small Business TRI Proposal, 23 Env't Rep. (BNA) 905 (July 17, 1992). Return to text.

[205] An organization called the Small Business Coalition for a Responsible TRI Policy, which represented more than twenty small business organizations, promoted an exemption like that proposed in the SBA petition. Proposal to Exempt Some Small Businesses from TRI Report ing Under Review, Official Says, 23 Env't Rep. (BNA) 2723, 2724 (Feb. 19, 1993). The spokesman and counsel for this group was former SBA attorney Kevin Bromberg. Small Businesses Seek Compromise on TRI Exemption, 23 Env't Rep. (BNA) 3097 (Apr. 2, 1993). It was Bromberg who drafted the SBA petition in the first place when he was employed by the EPA. Alair Maclean, What's Ahead for the Right-To-Know, THE RTK NET NEWSLETTER, Vol. 3, No. 4, (Spring 1994), available in RTK-NET, Entry No. 5897 (March 14, 1994). Return to text.

[206] SBA PETITION, supra note 142, at 1698; see also Comment Sought by EPA on Exclusion for Small Business Reporting to TRI, 23 Env't Rep. (BNA) 1671 (Oct. 30, 1992) [hereinafter Comment Sought]. The SBA petition was based on the opening provided by EPCRA section 313 final rule issued in 1988, which stated that the EPA could consider changing the statutorily specified thresholds for TRI reporting after experience with several years of data collection. SBA PETI TION, supra note 142, at 1699 (citing 53 Fed. Reg. 4508, Feb. 16, 1988).

TRI reporting requirements are based on the use of chemicals. To be required to file yearly toxic release inventory forms, companies must fit under an SIC code category between 20-39, employ ten or more employees, and manufacture, process or import more than 25,000 pounds, or otherwise use more than 10,000 pounds of a toxic chemical. 42 U.S.C. § 11023(f)(1) (1988 & Supp. V 1993). Because these thresholds are directed at particular classes of industry they can also be called "activity based" thresholds. SBA PETITION, supra note 142, at 1701. The small source exemption requested by the SBA was based on releases rather than use. For instance, a company that manufactures more than 25,000 pounds of chlorine (which is covered by the TRI reporting requirements) and packages it in drums for sale, may estimate that 200 pounds of the chlorine is released into the air. If the release threshold were 5000 pounds, as the SBA petition requested, then the firm would not have to report for chlorine. See Revamped TRI Could Reduce Reporting Burden for Small Chemical Release Sources, EPA Says, 24 Env't Rep. (BNA) 1764 (Feb. 11, 1994).

The petition differentiated between "high release volume" of the TRI chemicals, that is, over 5000 pounds, and urged the EPA to adopt a second 10-pound threshold for "low release volume" but extremely hazardous chemicals. SBA PETITION, supra note 142, at 1699. "Low release volume" chemicals, as described in the SBA petition, are primarily extremely hazardous substances, while "high release volume" refers to remaining chemicals subject to TRI reporting requirements. Id.

Supporters of the exemption not only lobbied the EPA, but also sought backing from President Reagan's Council on Competitiveness and the White House Council of Economic Advisors. OMB Urged by House Members to Approve Expanded Form R, Interpretative Guidance, 22 Env't Rep. 2699, 2700 (Apr. 10, 1992) [hereinafter OMB]. These supporters included the Chemical Specialties Manufacturers Association, which represents the major pesticide makers, and the U.S. Chamber of Commerce. Id.

The EPA received a similar petition from the American Feed Industry Association (AFIA) to exempt livestock foodmakers from TRI reporting on the grounds that releases of chemicals, primarily from feed additives, from this industry was insignificant and would not further the purposes of EPCRA. 58 Fed. Reg. 19308 (Apr. 13, 1993). This exemption would be achieved by removing the SIC code 2048, which consisted of the livestock feed industry, from TRI reporting. Id. As an alternative to the SIC code deletion, the AFIA petition suggested the adoption of the approach proposed in the SBA petition. Id. Return to text.

[207] SBA PETITION, supra note 142, at 1699. Return to text.

[208] See OMB, supra note 206, at 2670. Return to text.

[209] SBA PETITION, supra note 142, at 1699-700. The SBA asserted that the EPA could exclude facilities with releases and transfers of less than 5000 pounds for the vast majority of TRI chemicals and still satisfy the community right to know requirements and statutory objectives. Id. at 1699. The SBA contended that if this data were removed from reporting, the EPA would save ninety percent of the projected $19 million it would otherwise pay to administer the section 313 program. Id. This money could be then directed toward better federal monitoring, compliance and database activities. Id. The SBA argued that small sources release an insignificant amount of section 313 chemicals and have a minimal environmental impact but the collection of this data unnecessarily drains millions of dollars of the EPA's resources. Id. at 1700. Return to text.

[210] Panel Awaits Framework for Revamping TRI Before Reviewing Small-Source Exemption Plan, 24 Env't Rep. (BNA) 316 (June 18, 1993). The "piggyback" or "domino" effect requires businesses that report TRI data to comply with additional¾and to them, costly¾standards under state toxic use reduction laws, federal storm water requirements, and Clean Air Act requirements. Id. The SBA petition was specifically concerned with this effect for new federal legislative proposals involving storm water control, hazardous pollution prevention planning, hazardous waste management, water pollution control, and toxic releases which relied upon existing activity based thresholds, that if enacted, would greatly increase costs for both the EPA and small businesses. SBA PETITION, supra note 142, at 1699-700. Return to text.

[211] See OMB, supra note 206, at 2700. Return to text.

[212] SBA PETITION, supra note 142, at 1699. Return to text.

[213] Id. at 1701. Return to text.

[214] See OMB, supra note 206, at 2670. Return to text.

[215] Among the public interest groups which opposed the SBA's 5000 pound exemption were Citizen Action, Environmental Action, Physicians for Social Responsibility, and the Working Group on Community Right-to-Know. Hearing Debates "Low" Release Exemption, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW (January-February 1994), available in RTK-NET, Entry No. 5042 (March 15, 1994). Return to text.

[216] See OMB, supra note 206, at 2670. Return to text.

[217] Small Businesses Seek Compromise on TRI Exemption, 23 Env't Rep. (BNA) 3097 (Apr. 2, 1993). An environmental coalition organized to oppose the SBA proposal included the Environmental Defense Fund, the Natural Resources Defense Council and the Working Group on Community Right-To-Know. Id. Return to text.

[218] A representative of the Natural Resources Defence Council indicated that ninety-five percent of toxic releases are not covered by the TRI reporting requirements and that as a result, "[i]nstead of carving our new exemptions for special interest groups, EPA needs to look at ways to make TRI more comprehensive." Comment Sought by EPA on Exclusion for Small Business Reporting to TRI, 23 Env't Rep. (BNA) 1671, 1672 (Oct. 30, 1992). Return to text.

[219] Proposal to Exempt Some Small Businesses from TRI Reporting Under Review, Official Says, 23 Env't Rep. (BNA) 2723, 2724 (Feb. 19, 1993) [hereinafter Proposal]. The NRDC claimed that because of the 10 employee rule nearly eighty-three percent of all potential facilities were not subjected to TRI reporting. Id. Return to text.

[220] Comment Sought, supra note 206, at 1671, 1672. Return to text.

[221] Id. In comments the CMA submitted to the EPA concerning the SBA petition, the trade association indicated that it could accept a release-based threshold, provided it did not replace current thresholds or serve as an alternative basis for reporting. Proposal, supra note 219, at 2723. The CMA suggested that the EPA relieve small businesses of TRI reporting by modifying the "de minimis" exemption allowed by EPCRA regulations. Id. at 2723. De minimis refers to a concentration of a chemical in a mixture so low that threshold determina tions and release calculations are not required. 40 C.F.R. § 372.38(a) (1995). The exemption rule states that if a listed chemical is less than one percent of a mixture, or one-tenth of a percent for carcinogens, emissions of the substance need not be reported to the TRI. Id. Return to text.

[222] Comment Sought, supra note 206, at 1672. Return to text.

[223] Id. Return to text.

[224] TRI Small Release Exemption Plan Draws Objections From State Officials, 24 Env't Rep. (BNA) 1899 (Mar. 4, 1994). Section 8 of Form R requires firms to report pollution prevention data. A number of states have indicated they would lose this information with small release exemptions. Id. The head of the Ohio Division of Air Pollution Control noted that with a 5000 pound release exemption the state "would lose nearly 3,700 TRI reports annually [and that would result] in a twenty-eight percent loss of pollution prevention data." Id. Several representatives voiced the opinion that EPCRA already provided considerable small business relief and that a major change to release-based standards would further burden the regulatory process. Id. Return to text.

[225] EPA Proposed Rule on Reporting Low-level Chemical Releases Under EPCRA, 59 Fed. Reg. 684 (July 28, 1994) (reprinted in 25 Env't Rep. (BNA) 684 (Aug. 5, 1994)) [hereinafter Low-Level Release Rule]. Return to text.

[226] Low-Level Release Rule, supra note 225, at 685-86. The proposed rule changed only the threshold requirement for TRI reporting but did not modify or eliminate the other elements which determined whether a facility was subject to TRI reporting, namely that it have ten or more employees, be in SIC codes 20-39, and make, process, or otherwise use a chemical listed as a toxic chemical. Id. at 686. If a facility met these other requirements but released less than 100 pounds of a listed chemical and made, processed, or used more than 1 million pounds of a listed chemical, then it was released from TRI reporting for that particular listed chemical. Id. at 685-86. As alternatives to the 100 pound low-level standard, the EPA offered for public comment four other standards of less than 500 pounds, less than 10 pounds and zero, and a facility category based on the amounts reported for total waste generation rather than toxic chemical releases or transfers. Id. at 689-90. Return to text.

[227] 42 U.S.C. § 11023(f)(1)(A), (B)(iii) (1988 & Supp. V 1993). Return to text.

[228] Low-Level Release Rule, supra note 225, at 688. The EPA estimated that for 1992 reporting the 20,500 forms affected by the alternate thresholds came from an estimated 10,600 facilities, of which 3800 would meet the "low-level release" category for all chemical reports submitted. Id. Return to text.

[229] Id. The EPA was using figures for 1991 releases. Return to text.

[230] Id. The EPA was using figures for 1992 releases. Id. The EPA noted that this would be the total waste volume which would go unreported if all the 20,500 forms estimated to be eligible to apply the alternate threshold level did so. Id. Return to text.

[231] Environmentalists were especially surprised by the proposal. A spokesman for the Working Group on Community Right-To-Know, which represents more than 20 environmental organizations, said they were "caught off-guard." Small-Source Exemption Would be Set From Some Facilities Under TRI Proposal, 25 Env't Rep. (BNA) 626, 627 (Aug. 5, 1994). Return to text.

[232] See, e.g., Proposed EPCRA Additions Would Double Number of Chemicals Requiring TRI Reports, 24 Env't Rep. (BNA) 1619 (Jan. 14, 1994); TRI Small Release Exemption Plan Draws Objections from State Officials, 24 Env't Rep. (BNA) 1899 (March 4, 1994); Release Amount, Not Size of Business, Should Determine TRI Exemption, CMA Says, 24 Env't Rep. (BNA) 1789 (Feb. 18, 1994). Return to text.

[233] Low-Level Release Rule, supra note 225, at 684-85. Return to text.

[234] Id. at 685. The EPA had proposed sharply expanding the scope of the TRI program with a rule that would add 313 chemicals and chemical categories to the list of reportable toxic chemicals. Id. (referring to 59 Fed. Reg. 1788). According to the EPA the exemption would lead to a reduction of 20,500 forms it received, while the expansion of the TRI reporting due to adding new chemicals to its list would generate 28,000 new reports to the EPA. Id. See also Proposed EPCRA Additions Would Double Number of Chemicals Requiring TRI Reports, 24 Env't Rep. (BNA) 1619 (Jan. 14, 1994). The EPA has estimated that its proposed expansion would add 26,000 new reports and increase compliance costs by $155 million in its first year. Id. Return to text.

[235] EPA to Expand Chemical List, Proposal Would Double Right-to-Know Chemicals, WORKING NOTES ON COMMUNITY RIGHT- TO-KNOW, available in RTK-NET, Entry No. 5042 (Jan./Feb. 1994). Return to text.

[236] Alair MacLean, What's Ahead for the Right-To-Know, THE RTK NET NEWSLETTER, available in RTK-NET, Entry No. 5897 (March 14, 1994). Return to text.

[237] "Low" releases of toxic chemicals can have profound environmental effects. The head of the Working Group on Community Right-to-Know asserted that "[l]ow releases[ ] can be harmful" noting that "an IBM plant in South Brunswick, New Jersey, dumped 10 gallons of trichloroethylene onto the ground, closing one of the town's municipal drinking water wells." Small Release Exemption Could Harm Public Health, Witnesses Tell Agency, 24 Env't Rep. (BNA) 1854 (Feb. 25, 1994). A representative of the Physicians For Social Responsibility, in critiquing the EPA proposals for small release exemptions, noted that "[l]ess than 10 percent of the chemicals in commerce have been tested for toxicity." Id. He concluded that the result is that even de minimis releases of chemicals may pose a threat to humans. Id. "Persistent toxic chemicals in particular pose problems." Small Releases, Big Problems, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW (Jan./Feb. 1994), available in RTK-NET, Entry No. 5042 (March 15, 1994). "Scientists are finding that some potent chemicals are disrupting the ability of entire wildlife populations to reproduce." Id. "Many federal agencies do not recognize a safe level of exposure to cancer causing contaminants." Id. Environmentalists saw the proposal as opening a giant loophole for off-site transfers to "energy recovery" and "recycling" facilities but not counting transfers for recycling or incineration unless the facilities used more than 1 million pounds of the chemical annually. Small-Source Exemption Would Be Set for Some Facilities under TRI Proposal, 25 Env't Rep. (BNA) 627 (Aug. 5, 1994). A representative of the Working Group on Community Right-To-Know noted that because of this provision, companies that "send toxic wastes to incinerators could simply sidestep reporting by shipping waste to cement kilns for so-called energy recovery" and that "[t]his loophole would gut the Pollution Prevention Act of 1990." Id. He noted that "the proposal would keep more than 100 million pounds of toxic waste sent to cement kilns, solvent recyclers and other recovery operations from being reported to the public." Id. Return to text.

[238] UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 1991 TOXICS RELEASE INVENTORY: PUBLIC RELEASE DATA (EPA 745-R-93-003) (May 1993) [hereinafter 1991 TRI REPORT]. The EPA notes that "[t]he TRI list consists of chemicals that vary widely in their ability to produce toxic effects." Id. at 19. It states that "[s]ome high-volume releases of not significantly toxic chemicals may appear to be a more serious problem than lower-volume releases of highly toxic chemicals, when just the opposite may be true." Id. As to "[p]otential degradation or persistence of the chemical in the environment," the Report notes that "[s]unlight, heat, or microorganisms may or may not decompose the chemical." Id. "Exposure to a chemical is also dependent upon how long the chemical remains unchanged in the environment." Id. According to the EPA report, "microorganisms readily degrade some chemicals, such as methanol, into less toxic chemicals; volatile organic chemicals, such as ethylene and propylene, react in the atmosphere, contributing to smog; metals are persistent and will not be degraded upon release to the environment." Id. The EPA indicates that "[a]s a result, small releases of a persistent highly toxic chemical may create a more serious problem than large releases of a chemical that is rapidly transformed in the environment." Id. It mentions bioconcentration of a chemical in the food chain. Id. "The chemical may concentrate or may disperse as it moves up the food chain." Id. "Some chemicals . . . will accumulate as they move up the food chain; other chemicals . . . will disperse rather than bioconcentrate in higher organisms." Id. at 19-20. Return to text.

[239] Small Release Exemption Could Harm Public Health, Witnesses Tell Agency, 24 Env't Rep. (BNA) 1854 (Feb. 25, 1994). Four public interest groups¾Citizen Action, Environmental Action, Physicians for Social Responsibility, and the Working Group on Community Right-to-Know¾opposed the "low" release exemption and proposed only exempting companies that report zero toxic releases and off-site transfers, provided they comply with certain conditions. Hearing Debates "Low" Release Exemption, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW (Jan./Feb. 1994), available in RTK-NET, Entry No. 5042 (March 15, 1994). The conditions include:

(1) The owner or operator submits an annual written certification that the facility has no releases, transfers, and waste streams; (2) The owner or operator keeps accurate records supporting the exemption (available upon request) and the certification is recorded in the TRI database; (3) Reporting obligations are auto matically reinstated if there are future releases or transfers, or changes in business activity; (4) The exemption does not relieve potential future reporting obligations under a chemical use inventory.

Id. According to these environmental organizations, the "EPA's analysis shows that about 6,300 'zero' reports would be replaced with simple certifications under the alternative." Id. Paul Orum of the Working Group on Community Right-to-Know noted that, "[w]e would feel that we had won a victory if there had to be certification and only releases below ten pounds were exempted." Alair MacLean, What's Ahead for the Right-To-Know, THE RTK-NET NEWS LETTER, available in RTK-NET, Entry No. 5897 (March 14, 1994). Return to text.

[240] Small Release Exemption Could Harm Public Health, Witnesses Tell Agency, 24 Env't Rep. (BNA) 1854 (Feb. 25, 1994). An attorney for the Environmental Action Foundation claimed that "[n]early one-third of the facilities [required to file TRI forms] fail to do so" and that using "a released-based threshold as an exemption [is only advisable] when everyone is in compliance." Id. Return to text.

[241] Low-Level Release Rule, supra note 225, at 688. Fifty-two counties around the nation would lose ninety-one to one hundred percent of the total waste generation data under the EPA proposal. Id. The agency did not report figures of lesser but still significant loses of reporting data to other communities. Id. The NRDC and the New York Public Interest Research Group contend that this data is essential for understanding health risks existing in urban environments. Revamped TRI Could Reduce Reporting Burden for Small Chemical Release Sources, EPA Says, 24 Env't Rep. (BNA) 1764 (Feb. 11, 1994). Return to text.

[242] The head of the EPA's water office declared: "You're clearly going to see the agency pushing for zero discharge for a number of persistent toxics over the next three years." Hearing Debates "Low" Release Exemption, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW (Jan./Feb. 1994), available in RTK-NET, Entry No. 5042 (March 15, 1994). He noted that "[i]f the agency is serious, a 'low' release exemption to the TRI is the wrong place to start." Id. Return to text.

[243] 59 Fed. Reg. 61488 (Nov. 30, 1994) (to be codified at 40 C.F.R. § 372). Return to text.

[244] Id. at 61490-91. The EPA appeared to agree with the environmentalists that not including this information as a criterion qualifying a facility for reporting would undermine source reduction and be in conflict with the national policy established in the Pollution Prevention Act of 1990. Id. at 61490. The environmentalists had observed that the recycling loophole encouraged the incineration of toxic wastes in cement kilns rather than encouraging source reduction for these substances. Id. The environmentalists had pointed out that the TRI requires data on transfers of hazardous waste for recycling and was important because it indicated where releases from further processing of toxic materials may be occurring. Id. at 61490-91. Return to text.

[245] The proposed 100 pound low-level release exemption would decrease the number of Form Rs from 83,000 to 62,500, a twenty-five percent decline, while the 500 pound exemption would reduce the number to 63,000, a twenty-four percent reduction. 58 Fed. Reg. 61492. This is not much of a difference in the number of forms submitted. However, the difference between the 500 and 100 pound exemption would be quite substantial in terms of data reported. Under the 100 pound level, the EPA would lose reporting data on 6.1 billion pounds of toxic substances, or about 16.7% of the 37 billion pounds reported as of 1992. Id. In contrast, under the 500 pound level, it would lose data on 2.5 million pounds, or about 1/100th of all annual reportable amounts. Id. Return to text.

[246] The EPA added 286 chemicals and chemical categories to the list of toxic chemicals subject to TRI reporting. 59 Fed. Reg. 61432 (Nov. 30, 1994) (to be codified at 40 C.F.R. § 372). Return to text.

[247] EPCRA requires each state to set up a SERC. 42 U.S.C. § 11001(a) (1988 & Supp. V 1993). Among the duties of SERCs is to establish local emergency planning districts within the state, appoint a local emergency planning committee to serve each of the districts, review local emergency response plans annually, notify the EPA of all facilities in the state that are covered under emergency planning requirements, coordinate and supervise the activities of local committees, and coordinate proposals for and distribution of training grants. 42 U.S.C. §§ 11001, 11002(c)-(d), 11003(e) (1988 & Supp. V 1993). The SERCs receive reports and notifications required by EPCRA: materials safety data sheets or lists of MSDS chemicals, emergency and hazardous chemical inventory forms, and notices of emergency releases. 42 U.S.C. §§ 11004(b)(1), 11021(a)(1)(B), 11022(a)(1)(B) (1988 & Supp. V 1993). The SERC is also responsible for establishing procedures for receiving and processing public requests for information col lected under the Act, asking for further information from facilities at the request of the states or another party at its own discretion, requesting information from the EPA on the health effects of chemicals that the EPA has agreed to designate a trade secret and ensuring this information is available to the public, and taking civil action against facility owners or operators who fail to comply with reporting requirements. 42 U.S.C. §§ 11001(a), 11022(e), 11044, 11046(a)(2) (1988 & Supp. V 1993). A state also designates an agency to receive the annual TRI reports. 42 U.S.C. § 11023(a) (1988 & Supp. V 1993).

The LEPCs initially must develop chemical emergency response plans. 42 U.S.C. §§ 11001(c), 11003 (1988 & Supp. V 1993). They receive emergency release and hazardous chemi cal inventory forms submitted by local facilities and must make this information available to the public upon request. 42 U.S.C. §§ 11004(b)(1), 11021(a)(1)(A), 110021(c), 10022(a)(1)(A), 11022(e), 110044 (1988 & Supp. V 1993). The LEPC must establish and publicize procedures for handling these requests. 42 U.S.C. § 11001(c) (1988 & Supp. V 1993). The LEPCs can request additional information from facilities for their own planning purposes or on behalf of others. LEPCs can undertake civil actions against facilities if they fail to provide information under the Act. 42 U.S.C. § 110046(a)(2) (1988 & Supp. V 1993).

Fire departments traditionally participate in emergency planning and training. Under EPCRA they receive information about hazardous chemicals from facilities within their juris diction. This information is in the form of either MSDSs and lists of MSDS chemicals and hazardous chemical inventory forms, and is the same data submitted to LEPCs and SERCs. 42 U.S.C. §§ 11021(a)(1)(C), 11022(a)(1)(C) (1988 & Supp. V 1993). Return to text.

[248] Thomas Considers Using Superfund Money for Right-to-Know, Rep. Dingell Objects, 17 Env't Rep. (BNA) 1491 (Jan. 2, 1987) [hereinafter Thomas Considers]. The EPA was planning to use $16 million of the 1987 Superfund appropriations for the right-to-know law "and requested $19.5 million for fiscal 1988 as part of the Reagan Administration budget request." Thomas Halts Plan to Use Superfund Money to Carry Out Right-to-Know Program, 17 Env't Rep. (BNA) 1779, 1780 (Feb. 20, 1987) [hereinafter Thomas Halts]. Return to text.

[249] Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499. EPCRA constituted Title III of Pub. L. No. 99-499. The other titles constituted the Superfund Amendments and Reauthorization Act of 1986. Return to text.

[250] Reagan Signs Superfund Renewal Bill Despite Doubts About New Broad-Based Tax, 17 Env't Rep. (BNA) 955 (Oct. 24, 1986). The 1986 reauthorization increased funding "for the cleanup program from $1.6 billion under the original 1980 law to $9 billion . . . ." Id. The original law utilized special taxes on chemicals and on petroleum to raise $1.4 billion, with the rest to come from congressional appropriations. Id. For the reauthorized law, Congress had adopted a surtax on business to provide $2.5 billion for the Superfund, in addition to petroleum and chemical taxes, general revenues and other sources. Id. The surtax was levied "on businesses with an annual income in excess of $2 million, as determined [by] using" an alternative minimum taxable income tax that imposed a tax of $12 on every $10,000 earned. Id. (citing H.R. 3838, a tax revision bill which accompanied Superfund). Return to text.

[251] Reagan Signs Superfund Renewal Bill Despite Doubts About New Broad-Based Tax, 17 Env't Rep. (BNA) 955 (Oct. 24, 1986). Return to text.

[252] Id. Return to text.

[253] Thomas Considers, supra note 248, at 1491. The then head of EPA, Lee M. Thomas, stated that the "EPA's Office of General Counsel [had] informed him that 'we can use Superfund resources to fund the program [Right-to-Know] at least in fiscal 1987 and possibly further unless Congress disagrees with us.'" Id. Return to text.

[254] Thomas Considers, supra note 248, at 1491 (noting that the Congressional aide to Representative Dennis Eckart of Ohio contended that Congress had meant the right-to-know program to be funded separately because it was not part of the Superfund cleanup program and that EPCRA "is a free-standing statute").

See also A.L. Laboratories, Inc. v. EPA, 826 F.2d 1123 (D.C. Cir. 1987). The company sought judicial review in the Circuit Court of Appeals of the District of Columbia of an EPA regulatory action to list "bacitracin as an 'extremely hazardous substance' under" EPCRA. Id. The company contended that jurisdiction to review the EPA's action rested in this federal circuit court under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), which exclusively confers jurisdiction for regulatory review upon the D.C. Circuit Court of Appeals. Id. at 1124 (citing 42 U.S.C. § 9613(a) (1982)).

A.L. Laboratories argued that EPCRA was an amendment to CERCLA and that therefore jurisdiction to review EPA's action rested under CERCLA. Id. CERCLA, otherwise known as the Superfund Act, was enacted in 1980 to control toxic chemical disposal and the environmental damage from hazardous substances releases. Comprehensive Environmental Response, Compensation and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended in scattered section of 26 U.S.C. and 42 U.S.C., primarily codified in 42 U.S.C. §§ 9601-9675 (1982 & Supp. IV 1986)). In 1986 Congress enacted the Superfund Amendments and Re authorization Act (SARA) which amended the original Superfund Act. Pub. L. No. 99-499, 100 Stat. 1613 (1986) (codified in scattered sections of titles 10 and 15 of U.S.C.). EPCRA was enacted as Title III of SARA. Pub. L. No. 99-499, §§ 300-330, 100 Stat. 1613, 1728-58 (codified in 42 U.S.C. §§ 11001-11050 (Supp. IV 1986)). The EPA maintains that EPCRA is a free-standing law, wholly separate from CERCLA, and the Circuit Court agreed. A.L. Laboratories, 826 F.2d at 1124-25.

The court found the legislative history of EPCRA clearly showed that EPCRA was not merely an amendment to CERCLA but an independent act. Id. at 1124-25 (noting that EPCRA was originally introduced as a separate bill but was later incorporated into SARA; citing H.R. REP. NO. 99-962, 99th Cong., 2d Sess. 281). The court quoted the Conference Report as stating that it specifically adopted the House Amendment that EPCRA was to be established "as a free-standing title, not amending CERCLA." Id. at 1125 (quoting H.R. REP. NO. 99-962).

Since EPCRA did not provide for jurisdiction in the D.C. Circuit Court of Appeals, the court dismissed the A.L. Laboratories petition for review of the EPA's regulatory action to list bacitracin as an extremely hazardous substance. The court agreed with the EPA that since EPCRA did not contain a provision conferring jurisdiction upon it for regulatory review, that jurisdiction rested with a federal district court under the general jurisdiction statute for regulatory review. Id. at 1124 (citing 28 U.S.C. § 1331 (1982)). Return to text.

[255] Thomas Considers, supra note 248, at 1491. One of Dingell's aides said that taking Superfund money to fund the right-to-know program would be bad precedent since the EPA "would be taking money from an account [that] was specifically intended to support another program that needed [the funds]." Thomas Halts, supra note 248, at 1780. An aide for another congressman observed that if the EPA used the Superfund money for the right-to-know program, then it could just as easily use it for clean air, clean water or any other program it wished. Thomas Considers, supra note 248, at 1491. See also President's Budget Proposal Would Provide $2 billion in Water Act Construction Grants, 17 Env't Rep. (BNA) 1531, 1532 (Jan. 9, 1987). Return to text.

[256] Thomas Halts, supra note 248, at 1779. Dingell also had headed the House-Senate conference committee that resolved differences between the two chambers over Superfund legislation during 1986. Id. Return to text.

[257] Thomas Considers, supra note 248, at 1491. Return to text.

[258] House Panel Reports Supplemental Money Bill for EPA Sewer Grant, Right-to-Know Programs, 17 Env't Rep. (BNA) 2087 (Apr. 10, 1987) Return to text.

[259] State Officials See Problems Ahead in Meshing State, Federal Right-To-Know Laws, 17 Env't Rep. (BNA) 2131-32 (Apr. 17, 1987). Return to text.

[260] No Proper Training to Address Sites, Firefighters, Emergency Responders Say, 24 Env't Rep. (BNA) 148 (May 21, 1993). Return to text.

[261] Alair MacLean & Paul Orum, PROGRESS REPORT: COMMUNITY RIGHT- TO-KNOW 13 (July 1992) (A report issued by OMB Watch and Working Group on Community Right-to-Know, which consists of numerous local, state and national environmental groups.) [hereinafter PROGRESS REPORT]. See also Virginia Planning Groups Surveyed by VPI Found Capable of Developing Response Plans, 19 Env't Rep. (BNA) 2265 (Feb. 17, 1989). Return to text.

[262] UNITED STATES GENERAL ACCOUNTING OFFICE, REPORT TO CONGRESS, TOXIC CHEMICALS: EPA'S TOXIC RELEASE INVENTORY IS USEFUL BUT CAN BE IMPROVED 36-37 (June 1991) (GAO/RCED-91-121) [hereinafter GAO REPORT]. Return to text.

[263] Aide Asserts Additional Funds Needed to Fully Carry Out Emergency Planning Law, 19 Env't Rep. 247 (June 24, 1988) [hereinafter Aide Asserts] (reporting on remarks of the majority associate counsel for the Senate Environment and Public Works Committee to a National Governors' Association Conference). Return to text.

[264] For example, President Reagan's proposed 1990 EPA budget called for $79 million for state grants to enforce hazardous waste regulations, $8 million in a three-year state grant program to mitigate radon pollution, $1.2 billion in sewage treatment construction grants for states, and $17.4 million to support state efforts to control ozone and carbon monoxide pollution. $4.9 Billion Requested for EPA in Fiscal 1990 Budget, 19 Env't Rep. (BNA) 1827, 1828-29 (Jan. 13, 1994) [hereinafter $4.9 Billion Requested]. Return to text.

[265] Section 305 of EPCRA authorized $5 million for training programs, but limited the grants to no more than eighty percent of the state or local costs and required the balance be funded from non-federal sources. 42 U.S.C. § 1105(a)(2) (1988 & Supp. V 1993). See Aide Asserts, supra note 263, at 274 (reporting Senate committee counsel calling for restoration of training grants by Congress); $4.9 Billion Requested, supra note 264, at 1831 (noting the fiscal 1990 Reagan budget had not requested funding for emergency training grants to states and local governments). Return to text.

[266] EPA Developing Strategy That May Use States, Citizens to Help Enforce EPCRA, 18 Env't Rep. (BNA) 1818-19 (Dec. 4, 1987) (noting an EPA official conceding that under EPCRA, penalties are supposed to go to the federal treasury). It is questionable whether penalties the federal government collects under EPCRA can be directly diverted to state and local governments. It is generally understood that federal penalties for violations of pollution control statutes are paid directly to the federal treasury. Like most federal environmental statutes, EPCRA is modeled after early environment legislation like the Clean Water Act, which is generally regarded as permitting federal penalties to be turned over to the United States Treasury. See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 4 n.3 (interpreting the Clean Water Act and stating that "[c]ivil penalties under the Act are payable to the U.S. Treasury"). See also SENATE COMM. ON PUBLIC WORKS, REPORT ON FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS OF 1971, S. REP. NO. 414, 92 Cong., 2d. Sess. 80 (reprinted in 1972 U.S.C.C.A.N. 3668, 3675) ("It should be noted that any penalties imposed would be deposited as miscellaneous receipts . . . ."). See generally Marcia R. Gelpe & Janis L. Barnes, Penalties in Settlements of Citizen Suit Enforcement Actions Under the Clean Water Act, 16 WM. MITCHELL L. REV. 1025, 1028 (1990); Lauren Mileo O'Sullivan, Comment, Citizen Suits Under the Clean Water Act, 38 RUTGERS L. REV. 813, 819 (1986); Jeffrey G. Miller, Private Enforcement of Federal Pollution Control Laws, Part II, 14 Envtl. L. Rep. (Envtl. L. Inst.) 10063, 10079 (February 1984); Robert F. Blomquist, Rethinking the Citizen as Prosecutor Model of Environmental Enforcement Under the Clean Water Act: Some Overlooked Problems of Outcome Independent Values, 22 GA. L. REV. 337, 389 (1988). Return to text.

[267] $4.9 Billion Requested, supra note 264, at 1831. Return to text.

[268] Between fiscal years 1988 and 1990, EPA spent approximately $40 million to implement the TRI program, increasing yearly expenditures from $8 million to $19 million. GAO REPORT, supra note 262, at 13-14. Return to text.

[269] Coalition Advocates Greater Public Role in Controlling Hazards of Toxic Chemical Use, 23 Env't Rep. (BNA) 1112-13 (July 31, 1992). Return to text.

[270] PROGRESS REPORT, supra note 261, at 13 (A report issued by OMB Watch and Working Group on Community Right to Know, which consists of numerous local, state and national environmental groups). Another source, reporting on an EPA survey conducted in Spring of 1990, indicates that states provided a mere $1,319,204 to LEPCs. See Status Report¾Emergency Planning, available in RTK-NET, Entry No. 1941 (April 25, 1991). Seven states reported that they fund LEPCs; thirty-nine states reported that they did not fund their LEPCs. Id. Return to text.

[271] See Status Report¾Emergency Planning, available in RTK-NET, Entry No. 1941 (April 25, 1991). In a survey conducted by the EPA in 1990, eighteen states reported providing no appropriations for SERCs, twenty-six reported providing funding and the rest provided incomplete information. Id. Return to text.

[272] See Smith, supra note 182, at 1153, 1154 n.8 (1989) (citing Cal. Adv. Legis. Serv. 558 (Deering)); CAL HEALTH & SAFETY CODE §§ 25,500-25,541 (West Supp. 1989); CAL. LAB. CODE §§ 6360-6399.5 (West 1989); CAL. ADMIN. CODE tit. 8, § 5194 (1985)). Return to text.

[273] California Budget Threatens Right-to-Know Program, 23 Env't Rep. (BNA) 1165 (Aug. 7, 1992); Firms Should Plan to Include More Chemicals in TRI Emissions Reporting by 1994, EPA Says, 24 Env't Rep. (BNA) 358 (June 25, 1993). Return to text.

[274] State Chemical Inventory Fee Legislation Expected to Bolster Right-to-Know Efforts, 23 Env't Rep. 774 (July 10, 1992). Missouri enacted fee legislation in 1992 and expected to raise as much as $1 million annually. Its intention was to resurrect the state's right-to-know program. The legislation requires fees for companies that file chemical inventory reports. A business can pay up to $10,000 in fees. The law sets fees for facilities, except gas stations, that include a $100 annual fee, an additional twenty dollar fee for each listed hazardous or extremely hazardous chemical after the first three, and up to a $10,000 cap for each facility. Fees for gas stations are capped at fifty dollars. Sixty-five percent of the funds are to be distributed to LEPCs, twenty-five percent to the Missouri SERC and ten percent to fire departments for emergency training. Id. Georgia imposes a $500 fee on companies filing chemical inventory forms and a $1000 fee in 1994 on companies filing a TRI form, to go up to $1500 in 1995 and thereafter. Legislation Creates New Hazardous Waste Fee, Charges Companies Required to File EPCRA Forms, 24 Env't Rep. (BNA) 2113 (Apr. 15, 1994). Florida funds its EPCRA program by fees based on the number of employees at a facility, with fees ranging from $25 to $2000. Florida Urged to Keep EPCRA Fee Structure, 25 Env't Rep. (BNA) 544 (July 22, 1994). West Virginia provides for a fee system and local grant program to implement EPCRA. Fees include a $100 maximum fee per facility for emergency planning notification and chemical inventory reporting, including a twenty percent surcharge for failure to meet filing deadlines. Governor Signs Title III Legislation to Codify Federal Right-to-Know Requirements, 20 Env't Rep. (BNA) 127 (May 12, 1989). As of 1991, the National Governors' Association reported eighteen states had EPCRA fee laws. PROGRESS REPORT, supra note 261, at 13 n.22. But see All Funding Eliminated by Agency for Right-to-Know Programs in State, 20 Env't Rep. (BNA) 805 (Sept. 8, 1989). Return to text.

[275] 1987 TRI REPORT, supra note 195, at vii. Return to text.

[276] GAO REPORT, supra note 262, at 50 (citing an EPA study published in 1990 which examined the first year for TRI reporting, which was 1987, and indicating that thirty-four percent of the facilities that were supposed to report did not). See also Title III Filings Suggest Underreporting; Enforcement to Focus on Non-Filers, Elkin Says, 19 Env't Rep. (BNA) 399 (July 22, 1988) (showing that the EPA conceded the significant underreporting for the toxic chemical release reports required in 1988). Return to text.

[277] Even though more than 23,000 companies filed for the 1990 toxic release inventory, the EPA estimated that this may be only about sixty-seven percent of the facilities that should be filing. David Hanson, Toxic Release Inventory Data Show Steady Drop in Emissions, CHEMICAL ENGINEERING NEWS 13, 15 (June 15, 1992). See also Industrial Non-Notifiers Targeted by EPA, Regions Add Creative Efforts, Officials Report, 23 Env't Rep. (BNA) 1419, 1420 (Sept. 18, 1992); Report Says Relatively Few Companies Join Voluntary Effort to Cut Chemical Emissions, 23 Env't Rep. (BNA) 1507 (Oct. 2, 1992); Most Toxic Chemicals Released in U.S. Concentrated in Few States, From Few Plants, 21 Env't Rep. (BNA) 1146 (Oct. 12, 1990).

Non-reporting or false reporting of EPCRA's requirements is part of a larger problem of the reporting and record-keeping transgressions across the spectrum for other federal environmental laws and one which the Clinton Administration EPA has characterized as serious criminal violations which raise questions about the integrity of the entire regulatory system. More Agents, New Enforcement Programs Will Increase Prosecutions, Agency Says, 24 Env't Rep. (BNA) 1956-57 (Mar. 18, 1994) (reporting an EPA assistant administrator for enforcement and compliance noting that reporting and record-keeping requirements are not just "busy work forms" but that violations show companies are not keeping track of what they discharge into the environment and are often quite serious); see also Industrial Non-Notifiers Targeted by EPA, Regions Add Creative Efforts, Officials Report, 23 Env't Rep. (BNA) 1419, 1420 (Sept. 18, 1992) (describing the Bush era EPA which indicated that companies failing to file required reports or whose reporting is inadequate can expect agency enforcement action). Return to text.

[278] Manufacturers' Releases of Toxics in 1988 9 Percent Less Than in Previous Year, EPA Says, 20 Env't Rep. (BNA) 2006 (Apr. 27, 1990). Return to text.

[279] Of thirty-nine state environmental agencies the GAO surveyed in 1991 concerning non-reporters, estimates of non-reporting ranged from zero percent in North Dakota to eighty-three percent in Pennsylvania. GAO REPORT, supra note 262, at 3. Return to text.

[280] See, e.g., EPA Region II Cites Eight Facilities for Failing to File Required EPCRA Reports, 19 Env't Rep. (BNA) 1151 (Oct. 7, 1988) (reporting a low rate of compliance for toxic chemical release reporting from the manufacturing sectors of chemical products, publishers, and bookbinders). Return to text.

[281] GAO REPORT, supra note 262, at 50. Return to text.

[282] 42 U.S.C. § 11003 (1988 & Supp. V 1993). Return to text.

[283] About 60 Percent of Local Planning Groups Meet Deadline for Submitting Plans, EPA Says, 19 Env't Rep. (BNA) 1287 (Nov. 4, 1988). New Hampshire expected to receive plans from only fifteen of its 234 LEPCs. Id. However, all of the LEPCs in North Dakota and Washington were expected to comply with the October 17, 1988 statutory deadline. Id. Rural areas tended to be less likely to meet the deadline for the local emergency response plans than urban areas. Id. Return to text.

[284] Stronger Commitment Needed to Carry Out Requirements of EPCRA, Lautenberg Claims, 19 Env't Rep. (BNA) 183-84 (June 3, 1988). Return to text.

[285] Id. In a hearing of the Senate Environment and Public Works Subcommittee, the subcommittee chairman noted that the Reagan Administration requested and received the $5 million emergency training grants to states as authorized by EPCRA for fiscal 1987 and 1988, but did not request funds for fiscal 1989. At the hearing, state and local agencies and a representative of the National Wildlife Foundation urged the EPA to provide more assistance to states and localities to help carry out EPCRA. Id. Return to text.

[286] Id. Return to text.

[287] GAO REPORT, supra note 262. Return to text.

[288] Id. at 51-52. Return to text.

[289] Id. at 4, 49-61. Return to text.

[290] Id. at 49, 52-55. Return to text.

[291] Id. GAO found a direct link between the procedures used to target inspections by the EPA regional offices and the regions' success in identifying non-reporters. It noted that the likelihood of finding a non-reporter was three times greater in the EPA regions that screened facilities and gave them advance notice of inspections. Id. at 53-54. Return to text.

[292] Id. at 55. Return to text.

[293] See, e.g., Toxic Substances Control Act, 15 U.S.C. § 2610 (1994); Comprehensive Environmental Response, Compensation and Liability Act (Superfund), 42 U.S.C. § 9604(e) (1988 & Supp. V 1993); and Clean Air Act, 42 U.S.C. § 7414 (1988 & Supp. V 1993). Return to text.

[294] GAO REPORT, supra note 262, at 55. As of March 1990, all of the EPA's regions had conducted 1199 inspections. According to the GAO, the EPA had issued only 209 civil complaints from these inspections. Id. at 53, 55. Return to text.

[295] Id. Of the 209 complaints EPA brought as of March 1990, only sixty-eight, or one-third, were resolved. Id. Return to text.

[296] Id. at 56. It was the EPA's policy to issue a civil complaint against non-reporters within 180 days after an inspection. The GAO found that several EPA regions frequently failed to conform with this policy. Id. at 56-57. Return to text.

[297] Id. at 57 (referring to the fact that EPA had settled only sixty-eight of the 209 complaints it issued against non-reporters.) Return to text.

[298] Id. at 55. The EPA was taking enforcement action against non-reporters that submitted TRI reports after an inspection. But the EPA had not determined what enforcement action, if any, to take against facilities that submitted late reports without having been inspected. EPA data revealed that more than 4200 facilities submitted over 11,000 reports for their 1988 release after the July 1, 1989 deadline. At least 3400 of the reports were ninety or more days late, and 2268 emission data forms from 941 facilities were more than 180 days past due. Id. at 58. Return to text.

[299] EPA Guidance on EPCRA Section 313 Details Two-Part Enforcement Strategy, 18 Env't Rep. (BNA) 2372 (March 25, 1988). The EPA appeared to approach regional staffing for EPCRA more as a venture in civic service than as a serious, professional undertaking worthy of the agency investing its own personnel. Each EPA region hired or planned to hire for enforcement two or three retired persons, albeit technically qualified, through the American Association of Retired Persons. Id. Return to text.

[300] Creative Approaches May Be Needed for EPCRA Enforcement, Officials Say, 19 Env't Rep. (BNA) 340 (July 8, 1988) [hereinafter Creative Approach]. The EPA has also complained that EPCRA does not provide it with other explicit and standard investigatory powers, such as subpoena and warrant authority. Letter from Office of Policy, Planning and Evaluation, U.S. Environmental Protection Agency, to Richard Hembra, Director of Environmental Protection Issues, U.S. General Accounting Office (May 15, 1991) (contained in GAO REPORT, supra note 262, at 77, 82 (providing comments and response to draft GAO report)). The EPA has indicated that it has been successfully using the guidelines for inspections set out by the Supreme Court in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (upholding a challenge to a warrantless OSHA inspection, but providing guidelines for conducting consensual inspections). Return to text.

[301] Creative Approaches, supra note 300, at 340. Return to text.

[302] Id. The EPA indicated that if facilities challenged its authority to inspect under section 313, it would look to other federal laws, particularly TSCA. Id. It would rely upon TSCA, CERCLA and the Clean Air Act to gain admission to facilities to investigate violations of other sections of EPCRA. Id. See also GAO REPORT, supra note 262, at 55. Return to text.

[303] Creative Approaches, supra note 300, at 340. Return to text.

[304] See Pender, supra note 65, at 81, 86 (contending that the EPA had "unveiled a new and ambitious enforcement scheme for the 1990s"). Return to text.

[305] 1987 TRI REPORT, supra note 195, at 1. Return to text.

[306] EPA Fines 42 Companies $1.65 Million, Cites Failure to Report Toxic Discharges, 20 ENV'T. REP. (BNA) 496 (June 30, 1989) (reporting EPA proposed $1.5 million in penalties and indicating the highest fine submitted in this first round of enforcement was $721,000 against Inland Steel). See also Complaints Issued Against 25 Firms for Failing to Submit Section 313 Reports, 19 Env't Rep. (BNA) 1782 (Dec. 30, 1988); Decision Against Furniture Maker by ALJ is First Such Ruling Under EPCRA, 19 Env't Rep. (BNA) 2608 (Apr. 14, 1989) (reporting the first decision by an EPA administrative law judge under EPCRA; the violator being one of the twenty-five firms against which the EPA brought suit for failing to submit toxic release forms). Return to text.

[307] Criminal Cases, Fine Collections Rise in 1993, EPA Says in Report on Enforcement, 24 Env't Rep. (BNA) 1516 (Dec. 17, 1993). Return to text.

[308] See, e.g., Fine Settles Community Right-to-Know Charges, 23 Env't Rep. 2960 (Mar. 12, 1993) (reporting BP Oil agreed to pay a $162,000 fine to settle an EPA administrative action for failure to report accidental release of an extremely hazardous substance). Return to text.

[309] Adam Babich, Community Right-to-Know: Cost-effective Enforcement at the Local Level, J. ENVTL. HEALTH 327, 329 (July/Aug. 1989). This is provided that a reasonable settlement proposal is made to the violator. Id. The costs of coming into compliance and moderate monetary penalties is relatively low compared to the potential penalty assessments under EPCRA, which range from $10,000 to $75,000 per day. Id. There are no caps on the total penalty for which a facility may be liable for not reporting toxic release information. Return to text.

[310] New EPA Enforcement Policy to Expand Search for Incomplete, Inaccurate TRI Data, 23 Env't Rep. (BNA) 1276, 1277 (Aug. 28, 1992). Return to text.

[311] General Chemical Fined $65,625 by EPA, 24 Env't Rep. (BNA) 1084 (Oct. 8, 1993) (reporting that a company was fined for violations of emergency notification requirements of chemical releases); Penalties Proposed Against Four Companies for Alleged Violations of Right-To-Know Act, 24 Env't Rep. (BNA) 1012 (Oct. 1, 1993) (reporting penalties totaling $169,280 proposed against four New England companies for failure to submit MSDS forms and chemical inventory forms for several chemicals); Chlorine Leak Leads to Fine, 20 Env't Rep. (BNA) 1147 (Nov. 3, 1989) (reporting that Champion International will not contest a $20,000 fine levied against the paper company for a violation of section 304 of EPCRA for a chlorine leak from a Maine plant it failed to report to state and local officials); Plastics Manufacturer Fined for Reporting Violation, 21 Env't Rep. (BNA) 1262 (Nov. 2, 1990) (reporting that a plastic manufacturer agreed to pay the EPA a penalty of $34,650 for failing to submit MSDS information and emergency and hazardous chemical inventory forms). See also Plastics Maker Agrees to EPCRA Fine, 21 Env't Rep. (BNA) 1287 (Nov. 9, 1990); In re Seekonk Lace Company, No. EPCRA-I-90-1007, contained in Consent Decrees Regarding EPCRA or Pollution Prevention, available in RTK-NET, Entry No. 224, July 1, 1991 (consent order imposing a $15,000 penalty by company as settlement of violation of EPCRA hazardous chemical reporting requirements); Massachusetts Firm Ordered to Pay EPCRA Fine, 20 Env't Rep. (BNA) 1581 (Jan. 12, 1990) (reporting that the EPA administrative court ordered All Regions Chemical Labs, Inc. to pay $89,840 for violating emergency release notification requirements of EPCRA); see also Massachusetts Firm Assessed First Penalty for Violating EPCRA Section on Notification, 19 Env't Rep. (BNA) 1251 (Oct. 28, 1988) (reporting that the EPA assessed the first fine for failure of All Regions Chemical Labs to provide emergency notification about the release of chlorine, which forced 6,000 residents living within a mile of the facility to be evacuated); Failure to File Section 313 SARA Reports Leads to Proposed Fines for Seven Companies, 20 Env't Rep. (BNA) 1422 (Dec. 15, 1989) (reporting that the EPA proposed fines ranging from $17,000 to $126,000 and totaling $363,000 for five companies for failure to file toxic release reports); Chlorine Leak Leads to Fine, 20 Env't Rep. (BNA) 1147 (Nov. 3, 1989) (reporting a $20,000 EPA fine against a paper company for failing to report chemical leak at a Maine facility); Plastics Firm Faces EPCRA Penalty, 21 Env't Rep. (BNA) 828 (Aug. 24, 1992) (reporting that the EPA proposed a $59,000 penalty against a South Carolina rubber and plastics manufacturer for failure to report toxic release information); Facility Improvements Allowed in Lieu of Penalties, 21 Env't Rep. (BNA) 164 (May 11, 1990) (reporting that a Pennsylvania manufacturer agreed to undertake pollution prevention projects as part of a toxic emissions non-reporting settlement with the EPA in which a $64,000 possible penalty would be lowered to $1,000 if reductions are achieved for the chemical); New Jersey Firms Face EPCRA Fines, 20 Env't Rep. (BNA) 1785 (Feb. 16, 1990) (reporting that the EPA proposed $107,000 in penalties against two companies for failure to file TRI reports); Illinois Firm Agrees to Pay EPCRA Fine, 20 Env't Rep. (BNA) 1785 (Feb. 16, 1990) (reporting that the EPA originally proposed $51,000 in fines against companies for failure to file TRI report but ultimately agreed to a $43,000 payment). Return to text.

[312] EPA Fines 42 Companies $1.65 Million, Cites Failure to Report Toxic Discharges, 20 Env't Rep. (BNA) 496 (June 30, 1989) (reporting proposed fines ranging from $5000 to $118,000 sought by the EPA against companies for failure to report annual toxic releases); Complaints Filed Against 23 Companies for Alleged Right-to-Know Law Violations, 21 Env't Rep. (BNA) 441 (July 6, 1990) (reporting the EPA administrative complaints against twenty-three companies for violations of non-TRI requirements of EPCRA, which propose fines ranging from $6600 to $247,500). Return to text.

[313] For instance, in 1993, the EPA reported that of its 2110 enforcement actions, 1614, or seventy-five percent, were administrative penalty actions. Criminal Cases, Fine Collections Rise in 1993, EPA Says in Report on Enforcement, 24 Env't Rep. (BNA) 1516 (Dec. 17, 1993). The remainder included 140 criminal cases, 338 civil cases and 18 actions to enforce existing consent decrees. Id. See also Criminal Fines Rise Sharply in 1992, Civil Penalties Also Up, Report Says, 24 Env't Rep. (BNA) 260 (June 11, 1993) (stating that the EPA National Penalty Report for 1993 indicated that ninety percent of it enforcement actions were administrative cases in 1993 compared to ten percent that were civil or criminal judicial cases). Return to text.

[314] Ninety percent of EPA's civil enforcement are administrative actions, but sixty-three percent of its civil penalties are from judicial proceedings. Record $61 Million in Civil Penalties Collected in Fiscal 1990, EPA Reports, 22 Env't Rep. (BNA) 129 (May 17, 1991) (reporting that in fiscal 1990, the EPA undertook 1263 administrative enforcement actions and 137 judicial cases but that it collected $38.5 million from judicial actions and $22.8 million from administrative cases); Criminal Fines Rise Sharply in 1992, Civil Penalties Also Up, Report Says, 24 Env't Rep. (BNA) 260, 261 (June 11, 1993) (noting that an EPA 1992 enforcement study showed the highest administrative penalty for an environmental enforcement action was $900,000, brought for violations of RCRA and TSCA, whereas the highest judicial penalty obtained was $6.7 million, brought for Clean Air Act violations). Return to text.

[315] David Hanson, EPA Widens Net to Catch Small Violators, CHEMICAL ENGINEERING NEWS 15, February 24, 1992. Return to text.

[316] Congressional and Administrative Outlook for Environmental Issues in 1994, 24 Env't Rep. (BNA) 1660, 1673 (Jan. 21, 1994). See also Industrial Non-Notifiers Targeted by EPA, Regions Add Creative Efforts, Officials Report, 23 Env't Rep. (BNA) 1419, 1420 (September 18, 1992) (noting that the TRI is used by the EPA to identify facilities for regulation and enforcement, set priorities, develop pollution prevention strategies, and craft settlements for other environmental laws). Return to text.

[317] 1992 TRI REPORT, supra note 67, at A-20. 1987 was the first year industry was required to report TRI releases, but the EPA uses 1988 as the baseline year in comparing TRI data across the several years in which TRI has been reported because of concerns about the data quality of industry's submissions for the first year. Id. at 155. Therefore, for tabulating compliance and enforcement statistics for the TRI program, the EPA also uses 1988 as its baseline year. Id. at A-20. Return to text.

[318] 1992 TRI REPORT, supra note 67, at A-20. Return to text.

[319] See Company Settles EPCRA Reporting Complaint, 21 Env't Rep. (BNA) 1691 (Jan. 16, 1991) (reporting a Massachusetts plastics and rubber manufacturer will pay $142,800 to settle an EPA administrative enforcement action for violations of TRI reporting, the largest settlement as of 1991 in New England under EPCRA). Return to text.

[320] See, e.g., Five Companies Cited for Reporting Violations, 21 Env't Rep (BNA) 1501 (Nov. 30, 1990) (reporting three New Jersey and two New York firms cited for not reporting annual toxic emissions for a total of $117,000 in penalties). Return to text.

[321] Industrial Non-Notifiers Targeted by EPA, Regions Add Creative Efforts, Officials Report, 23 Env't Rep. (BNA) 1419, 1420 (Sept. 18, 1992). Return to text.

[322] Id. Return to text.

[323] Criminal Fines Rise Sharply in 1992, Civil Penalties Also Up, Report Says, 24 Env't Rep. (BNA) 260 (June 11, 1993) (reporting the results of the 1992 EPA National Penalty Report, which indicated the Clean Water Act program led in civil penalties assessed, with twenty-nine percent of total civil penalties, followed by the stationary air program with twenty-five percent of the total, with civil penalties from RCRA, CERCLA and TSCA accounting for slightly more than forty-six percent, and all other programs, which included EPCRA, accounting for less than one percent). See also All-Time Records for EPA Criminal Referrals, Civil Penalties Cited in Enforcement Report, 23 Env't Rep. (BNA) 404 (May 22, 1992) (describing an EPA report ranking the agency programs in descending order of civil and criminal penalties assessed which places EPCRA behind other EPA programs and indicating TRI penalty collection ranked ahead of other EPCRA sections). Return to text.

[324] New Records for Actions, Fines Set by EPA Despite Restructuring of Program, 25 Env't Rep. (BNA) 1501 (Dec. 2, 1994). Return to text.

[325] Emergency Planning, 25 Env't Rep. (BNA) 1773 (Jan. 13, 1995). Return to text.

[326] See, e.g., Court Fines Bethlehem Steel $6 Million, Imposes Record Penalty for RCRA Violations, 24 Env't Rep. (BNA) 845, 846 (Sept. 10, 1993) (reporting a record fine by the federal district court in United States v. Bethlehem Steel Corp., DC N. Ind., No. H-90-326, 8.31/93, for steel company's long-standing violation of federal hazardous waste laws); Criminal Fines Rise Sharply in 1992, Civil Penalties Also Up, Report Says, 24 Env't Rep. (BNA) 260 (June 11, 1993) (reporting a $6.7 million judicial penalty under the Clean Air Act). The largest environmental criminal penalty ever imposed is $125 million and the largest single civil monetary settlement in history is $900 million, both arising out of the Exxon Valdez oil spill in Alaska. Department of Justice Announces Record $2 Billion Year for Environmental Enforcement, available in RTK-NET, Entry No. 2810, October 29, 1992. Return to text.

[327] See, e.g., Louisiana-Pacific to Pay $11 Million to Settle Charges of Clean Air Violations, 24 Env't Rep. (BNA) 179 (May 28, 1993) (reporting a settlement between a wood paneling company and the EPA that was the second largest civil penalty at the time for violation of a federal environmental law and the largest for air pollution violations, consisting of a $11.1 million fine and the required installation of $70 million in state-of-the-art pollution control equipment). Return to text.

[328] The EPA reported that it collected $133 million in fines in 1993: $103.8 million in civil penalties and $29.5 million in criminal fines. Criminal Cases, Fine Collections Rise in 1993, EPA Says in Report on Enforcement, 24 Env't Rep. (BNA) 1516 (Dec. 17, 1993). Return to text.

[329] Criminal Fines Rise Sharply in 1992, Civil Penalties Also Up, Report Says, 24 Env't Rep. (BNA) 260, 261 (June 11, 1993) [hereinafter Criminal Fines] (reporting a study by the director of the George Washington University Environmental Crimes Project which noted that half of the EPA settlements resulted in penalties of less than $5000). Return to text.

[330] See supra notes 319-20. Return to text.

[331] Criminal Fines, supra note 329 (discussing accusation of report by George Washington University Environmental Crimes Program). But see Report Alleges Justice Department to Prosecute Environmental Crimes Vigorously, 23 Env't Rep. (BNA) 1710, 1711 (Oct. 6, 1992) (reporting the Justice Department's rebuttal of the report). Return to text.

[332] EPA Developing Strategy That May Use States, Citizens to Help Enforce EPCRA, 18 Env't Rep. (BNA) 1818 (Dec. 4, 1987). Return to text.

[333] Criminal Fines, supra note 329, at 263. Return to text.

[334] More Agents, New Enforcement Programs Will Increase Prosecutions, Agency Says, 24 Env't Rep. (BNA) 1956-57 (March 18, 1994) (reporting the EPA administrator for enforcement and compliance stating that the agency has and will continue to increase the number of investigators to discover and prosecute environmental crimes). The Clinton Administration now declares it views criminal prosecution of reporting violations of environmental laws as generally insufficient. Id. (reporting the EPA's director of criminal enforcement noting that state agencies have not been aggressive in criminal environmental investigation and enforcement). Return to text.

[335] In First Criminal Case Under EPCRA, Utility Pleads Guilty to Reporting Charge, 25 Env't Rep. (BNA) 1307 (Nov. 4, 1994) Return to text.

[336] Industrial Non-Notifiers Targeted by EPA, Regions Add Creative Efforts, Officials Report, 23 Env't Rep. (BNA) 1419, 1420 (Sept. 18, 1992). Return to text.

[337] According to the EPA's head of compliance policy and planning in 1992, seventy percent of all enforcement actions of federal environmental laws were done by the states; and these states collected fines in the aggregate which were "orders of magnitude" higher than those collected by the federal government. Criminal Fines, supra note 329. Return to text.

[338] Criminal Cases, Fine Collections Rise in 1993, EPA Says in Report on Enforcement, 24 Env't Rep. (BNA) 1516-17 (Dec. 17, 1993). In 1993, the EPA undertook a record 2110 enforcement actions, compared to 10,000 actions taken by the states. Id. As another example, in 1991, the New York State Department of Environmental Conservation initiated 2328 civil cases, finalized 1524 consent orders, and obtained sixty-eight convictions against environmental law violators. New York Reports Lawsuits, Settlements, Convictions, 22 Env't Rep. (BNA) 535 (June 28, 1991). The state obtained $15 million in penalties and responsible parties agreed to spend $277 million in remedial projects. Id. Return to text.

[339] See No Fines For Late Pollution Plans in New Jersey, 25 Env't Rep. (BNA) 430 (June 24, 1994). Return to text.

[340] Illinois Asks Federal District Court to Fine Food Company for EPCRA Violations, 19 Env't Rep. (BNA) 2608 (Apr. 14, 1989) (reporting the citizen suit brought by the State of Illinois against a food distributor for failure to notify the state and local authorities about the presence of extremely hazardous materials on the site). Return to text.

[341] States Call for EPA Action Against Companies That Fail to Report TRI Data, 23 Env't Rep. (BNA) 3015 (Mar. 19, 1993). Return to text.

[342] Id. Return to text.

[343] Id. Return to text.

[344] Id. Return to text.

[345] The EPA assistant administrator for enforcement and compliance assurance, who is the chief enforcement official of the agency, has criticized the most aggressive form of environmental enforcement by states, namely criminal enforcement. He noted that "[s]ome states have good programs" but they have not been "racing each other" to begin criminal investigations. More Agents, New Enforcement Programs Will Increase Prosecutions, Agency Says, 24 Env't Rep. (BNA) 1956 (Mar. 18, 1994). Return to text.

[346] EPA Issues Interim Enforcement Strategy on Reportable Releases, Emergency Notification, 19 Env't Rep. (BNA) 1808 (Jan. 6, 1989). Return to text.

[347] See, e.g., California Budget Threatens Right-to-Know Program, 23 Env't Rep. (BNA) 1165 (Aug. 7, 1992) (reporting a sluggish economy and soaring deficit has caused California, the nation's most populous state, to consider budget cuts which threaten its community right-to-know program). Return to text.

[348] Pender, supra note 65; Emergency Releases Most Likely Target of Initial Enforcement, State Official Says, 18 Env't Rep. (BNA) 2241 (Feb. 26, 1988); TSCA Confidentiality Claims May be Lost With Community Right-to-Know Law, ACS Told, 17 Env't Rep. (BNA) 2098 (Apr. 10, 1987) (reporting a law professor warning that the TRI reports filed with the EPA each year will include evidence of discharges in violation of other environmental laws and that these may be used by environmental or citizen groups in citizen suits). Return to text.

[349] Public Interest Group to Start Road Show to Inform Public of Emergency Planning Act, 19 Env't Rep. (BNA) 277 (June 24, 1988). Return to text.

[350] Id. Return to text.

[351] See Pender, supra note 65, at 86 (contending that the EPA had "unveiled a new and ambitious enforcement scheme for the 1990s"). See also EPCRA Citizen Suit Filed in Minnesota, 23 Env't Rep. (BNA) 1953 (Dec. 4, 1992) (citing Citizens for a Better Environment v. Taylor Corp., DC Minn. No. 3-CIV-92-785, Dec. 30, 1992, a citizen suit alleging failure by a Minnesota company to report toxic releases from 1987 to 1991); Settlement Reached in EPCRA Reporting Case, 23 Env't Rep. (BNA) 2734 (Feb. 19, 1993) (citing Citizens for a Better Environment v. Taylor Corp. and reporting company agreeing to settle by making payment of $40,000 to four environmental planning and education programs); Companies Sued For Right-To-Know Viola tions, 21 Env't Rep. (BNA) 2237 (Apr. 12, 1991) (citing Trial Lawyers for Public Justice v. IR International Inc., DC EVA. No. 91-CV-00134, March 14, 1991, a citizen suit brought by Trial Lawyers on behalf of Environmental Action and Natural Resources Defense Council for the alleged failure of a Virginia company to file toxic release inventory reports for three years); Michigan Group Sues Firm for Late Reporting Seeks Safety Efforts, Cut in Toxic Chemical Use, 22 Env't Rep. (BNA) 1350 (citing Ecology Center v. Johnson Inc., DC E. Mich., No. 91-CV-60304-AA, the citizen suit brought for alleged failure by the Michigan company to report yearly releases of 1.5 million pounds of a persistent toxic chemical during four years); Delaware Valley Toxics Coalition v. Kurz-Hastings, Inc., 813 F. Supp. 1132, 1141 (E.D. Penn. 1993) (reporting citizen suit by the Delaware Valley Toxics Coalition, a Philadelphia based environmental group, which was joined in the litigation by the Philadelphia Project on Occupational Safety and Health, a coalition of nearly 200 trade unions). See also Right of Citizens to Sue Under EPCRA Upheld as Judge Refuses to Dismiss Suit, 23 Env't Rep. 2944 (Mar. 12, 1993). Return to text.

[352] Williams v. Leybold Technologies, Inc., 784 F. Supp. 765 (N.D. Cal. 1992). The suit was brought by an employee of a manufacturing plant for its failure to submit MSDSs pursuant to section 311(a)(1) of EPCRA, 42 U.S.C. § 11021(a)(1) (1988 & Supp. V 1993), for hazardous nickel and nickel compounds. Id. at 766-67; Keslick v. Pennsylvania Parks & Recreation, C.A. No. 93-3384, 1993 U.S. Dist. LEXIS 13133 (E.D. Pa. Aug. 25, 1993) (dismissing pro se suit for failure to properly show jurisdiction). Return to text.

[353] Atlantic States Legal Foundation v. Com-Cir-Tek, Inc., No. CIV-90-772C (W.D.N.Y. filed July 25, 1990) (cited in Pender, supra note 65, at 86 n.23). The New York company agreed to a settlement where it would pay $2500 and set up a pollution prevention program in lieu of a $50,000 fine for alleged violations of sections 311, 312 and 313 of EPCRA. Fine Exchanged for Pollution Prevention Plan, 22 Env't Rep. (BNA) 535 (June 28, 1991). Return to text.

[354] See Atlantic States Legal Found., Inc. v. Eastman Kodak Co., 809 F. Supp. 1040 (W.D.N.Y. 1992), aff'd 12 F.3d 353 (2d Cir. 1993) (affirming district court summary judgment against the ASLF and holding that the discharge of EPCRA listed substances does not violate permits issued under the Clean Water Act); A.L. Lab., Inc. v. EPA, 674 F. Supp. 894 (D.D.C. 1987) (holding the EPA's refusal to remove the antibiotic bacitracin and phthalate esters from the section 302 list of extremely hazardous chemicals to be arbitrary, capricious and contrary to EPCRA); A.L Lab., Inc. v. EPA, 826 F.2d 1123 (D.C. Cir. 1987) (holding the court of appeals lacked jurisdiction under EPCRA to review listing of bacitracin); see also EPA Removes Bacitracin, Other Chemicals from List of Extremely Hazardous Substances, 18 Env't Rep. (BNA) 1954 (Dec. 25, 1987); Appeals Court Rejects Company Petition to Remove Bacitracin from Title III List, 18 Env't Rep. (BNA) 1371 (Sept. 18, 1987); Atlantic States Legal Found. v. Whiting Roll-Up Door Mfg., 772 F. Supp. 745 (W.D.N.Y. 1991) (holding EPCRA allows citizen suits for reporting violations that are not ongoing at the time the lawsuit is filed, that is, past violations); see also Public Has Right to Sue Industries for EPCRA Violations, 22 Env't Rep. (BNA) 1310 (Sept. 9, 1991); EPCRA Allows Citizen Suits for Past Violations, 22 Env't Rep. (BNA) 1384 (Sept. 27, 1991); Atlantic States Legal Found. v. Buffalo Envelope, 823 F. Supp. 1065 (W.D.N.Y. 1993) (holding that EPCRA does not violate separation of powers and appointments clause of Con stitution and reporting thresholds do not violate due process); see also Atlantic States Legal Found. v. Whiting Roll-Up Door Mfg., No. 09-CV-1109s, 1994 U.S. Dist. LEXIS 6071 (W.D.N.Y. March 23, 1994) (holding that EPCRA does not prevent plaintiffs in citizen suits from collecting attorney fees); Citizen Groups May Recover Attorney Fees from Companies That Violate EPCRA, Court Rules, 24 Env't Rep. (BNA) 2105 (Apr. 15, 1994); Public Interest Groups Ask EPA Not to Back Amicus Brief to Limit EPCRA Citizens' Suits, 22 Env't Rep. (BNA) 2672 (Apr. 3, 1992); Ohio Chamber of Commerce v. SERC, 597 N.E.2d 487 (Ohio 1992) (holding the SERC could require companies to submit detailed plant specific maps with chemical inventory reports); see also Ohio Supreme Court Upholds Mapping Rule, 23 Env't Rep. (BNA) 1482 (Sept. 25, 1992); All Regions Chemical Lab. v. EPA, 745 F. Supp. 76 (D. Mass. 1990) (denying the EPA's motions for a more definite statement in chemical company's challenge of the EPA administrative penalty for EPCRA violation). Return to text.

[355] By April of 1992, the ASLF had sent thirty notices of intent to sue to companies which they claimed violated EPCRA. Public Interest Groups Ask EPA Not to Back Amicus Brief to Limit EPCRA Citizen Suits, 22 Env't Rep. (BNA) 2672, 2673 (April 3, 1992). It developed twenty-one cases as a result. Id. The EPA pre-empted nine of the cases. Id. Of the remaining fifteen cases, ASLF settled nine. Id. Return to text.

[356] See infra note 357 and supra note 355. Return to text.

[357] For instance, in one settlement that ASLF secured in a citizen suit against a Wisconsin manufacturer for failure to submit toxic chemical release information, the company agreed to a $50,000 credit for installing pollution control equipment, investigating pollution reduction op tions, and for "study[ing] toxics use reduction, pollution prevention, and waste minimization." Wisconsin Manufacturer Settles Right-to-Know Case, 23 Env't Rep. (BNA) 1165 (Aug. 7, 1992) (citing an order in Atlantic States Legal Found. v. Communications Prods. Corp., D.C. W. Wis. No. 92C-570S, July 31, 1992). The firm would pay the credited sum to the federal government if the projects were not completed. Id. The firm also was to make payments to two Wisconsin environmental groups, a county LEPC, and the federal government. Id. In a $180,000 settlement secured in an ASLF citizen suit, a New York company agreed to pay a $13,000 penalty to the federal government, $30,000 to a county LEPC ($20,000 of which was to fund a "pollution prevention and risk reduction seminar for Western New York"), $15,000 to the state emergency management office, $62,000 to two environmental organizations, $50,000 to the joint United States and Canadian water quality programs relating to the Great Lakes, and $10,000 to a local fire department. RTK-NET, Entry No. 4642 (October 13, 1993) (citing a consent decree in ASLF v. International Imaging Materials, Inc., (docket number omitted). See generally Adam Babich, Community Right-to-Know: Cost-Effective Enforcement at the Local Level, 52 J. ENVTL. HEALTH 327, 328 (July/Aug. 1989). Supplemental Environmental Projects (SEPs) is the term the EPA uses to describe projects that facilities may undertake, as part of the settlement process, to protect or restore the environment through pollution prevention, waste minimization, and/or a decrease in a natural resource use. 1992 TRI REPORT, supra note 67, at A-20. The EPA indicates that since fiscal year 1991, when it began to track SEPs, the agency has closed 152 civil complaints containing one or more SEPs for TRI violation cases. Id. Return to text.

[358] See, e.g., Alan McLean, NWF Announces Largest Settlement in Clean Air Litigation, available in RTK-NET, Entry No. 9709 (Feb. 2, 1995) (reporting the largest settlement in the twenty-five year history of the Clean Air Act, $250 million, in a lawsuit filed by the National Wildlife Federation against the Copper Range Company for toxic pollution of Lake Superior; the award encompasses a new $200 million smelter in compliance with the Clean Air Act, pollution reduction measures, and $1.8 million in fines). Return to text.

[359] Thomas Jefferson stated that "if we think [the people are] . . . not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion." Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820), reprinted in 7 WRITINGS OF THOMAS JEFFERSON 177, 179 (H. Washington ed., 1955), quoted in Natural Resources Defense Council v. Nuclear Regulatory Comm'n, 547 F.2d 633, 655 (D.C. Cir. 1976). Return to text.

[360] EPA head Carol Browner stated that "[t]he [TRI] inventory is among our most potent environmental weapons." David Hanson, Toxic Release Inventory: Firms Make Strides in Cutting Emissions, 71 CHEMICAL AND ENGINEERING NEWS 6 (May 31, 1993). Return to text.

[361] See Brad Knickerbocker, Toxic Releases and the Right to Know, CHRISTIAN SCIENCE MONITOR, Sept. 3, 1992, at 11. Return to text.

[362] Kevin J. Finto, Regulation by Information Through EPCRA, 4 NAT. RESOURCES & ENV'T. 13 (Wtr. 1990). Return to text.

[363] Mary Beth Regan, An Embarrassment of Clean Air, BUSINESS WEEK, May 31, 1993, at 34. Return to text.

[364] See, e.g., Appendicies 1-6. The EPA has issued five reports since 1989. See infra note 446. There is a two year lag between the reporting year for the TRI reports filed by industry and the EPA's national reports compiling the data. Thus, for instance, the first reporting year for industry submission of their TRI data was 1987. However, the EPA issued the national release report for the 1987 reporting year in 1989. See 1987 TRI REPORT, supra note 195. Return to text.

[365] 1987 TRI REPORT, supra note 195. Return to text.

[366] Referring to the July first deadline for manufacturers to report their toxic releases, Congressman James Florio of New Jersey, one of EPCRA's authors, stated that "[o]n July 4th, we celebrate our nation's independence. On July 1st, we celebrate our independence from environmental ignorance." OMB WATCH, USING COMMUNITY RIGHT TO KNOW: A GUIDE TO A NEW FEDERAL LAW 35 (1988). He predicted, "Those three little words¾right to know¾just might pack the punch we need to win the long fight against pollution." Id. at 36. In 1988 it was reported that the director of the EPA's Office of Toxic Substances called the TRI inventory "revolutionary." Fred Millar, The Beginnings of Chemical Control, 5 ENVTL. F. 26 (Sept./Oct. 1988). Return to text.

[367] See generally Right-to-Know Chemical Data Both Boon, Burden to Defendants in Toxic Tort Lawsuits, 20 Env't Rep. (BNA) 199, 199-200 (June 2, 1989); Petroleum Industry Faces Problems in Complying With EPCRA, API Head Says, 19 Env't Rep. (BNA) 303 (July 1, 1988); Compliance With Right-to-Know Advised Although Payoff Is Not Immediately Obvious, 18 Env't Rep. (BNA) 1035 (Aug. 14, 1987); CMA Advises Firms to Go Beyond Compliance with Title III Mandates To Avoid Problems, 18 Env't Rep. (BNA) 1327 (Sept. 11, 1987); Prepare Now for Public's Questions on Emissions Data, EPA Official Recommends, 18 Env't Rep. (BNA) 1561 (Oct. 16, 1987); EPA Official Advises Industry to Begin Local Public Dialogue Before Releasing Data, 17 Env't Rep. (BNA) 1799 (February 20, 1987); Du Pont Chairman Sees Need to Build Consensus on 'Right Response' to Environmental Problems, 17 Env't Rep. (BNA) 1227 (Nov. 21, 1986); Gene Matsumoto, Confrontation or Compromise, 5 ENVTL. F. 31 (Sept./Oct. 1988). Return to text.

[368] Pender, supra note 65, at 84-85. Return to text.

[369] Data From EPCRA Emissions Reporting Called 'Startling' by Environmental Agency, 19 Env't Rep. 2628, 2629 (Apr. 21, 1989) [hereinafter Data From EPCRA]. Return to text.

[370] Philip Shabecoff, Industrial Pollution Called Startling, N.Y. TIMES, April 13, 1989, at D21. Return to text.

[371] Data From EPCRA, supra note 369, at 2629. Return to text.

[372] Shabecoff, supra note 370, at D21. Return to text.

[373] A total of 19,278 manufacturing facilities reported to TRI. 1987 TRI REPORT, supra note 195, at 8. The first national report broke down TRI releases according to five environmental mediums. Water: About 9.7 billion pounds of toxic chemicals were released into surface water in 1987, or about forty-three percent of all releases. Id. at 130. Ninety-five percent of the releases into water consisted of sodium sulfate, which the EPA was in the process of deleting from the section 313 list on the grounds that it did not meet the toxicity criteria. Id. at 85. Without sodium sulfate, about eight percent of all releases were into surface water. Id. at 83. Air: 2.7 billion pounds of toxic chemicals, or twelve percent of all releases, were released into the air. Id. at 109. Sixty-eight percent or, 1.8 billions pounds, were from point sources, while the remainder were fugitive emissions, such as evaporative losses and leaks. Id. Land: The reported releases to land on-site were nearly 2.5 billion pounds, eleven percent of all toxic releases, and most fell into the category of waste disposal. Id. at 171-73. Underground Injection: More than 3.2 billions pounds of toxic chemicals were injected into underground wells in 1987, fourteen percent of the total. Id. at 93. Discharges to publicly owned treatment works: 1.9 billion pounds of TRI chemicals, nine percent of the TRI total, were discharged into public sewage systems. Id. Transfers to other off-site facilities: 2.6 billion pounds of TRI chemicals, twelve percent of the total, were released from locations such as hazardous waste treatment facilities. Id. at 93, 215. Return to text.

[374] More than half of the 19,278 manufacturing facilities which reported to the TRI were located in 10 states. 1987 TRI REPORT, supra note 195, at 8. California had the largest number (1662) and the highest total TRI releases and transfers. In terms of total TRI releases and transfers, California was followed, in descending order, by Texas, Louisiana, Alabama, Michigan, Indiana, Ohio, Georgia, Mississippi, and Tennessee. Id. See also Appendicies 1-2. Return to text.

[375] Of the over 300 chemicals on the original TRI list, twenty-five chemicals accounted for ninety-four percent of all releases and transfers. 1987 TRI REPORT, supra note 195, at 18. In order of rank, they were sodium sulfate, aluminum oxide, hydrochloric acid, sulfuric acid, sodium hydroxide, ammonia, methanol, toluene, phosphoric acid, acetone, xylene, methyl ethyl ketone, 1,1,1-tricholorethane, copper, zinc compounds, dichloromethane, carbon disulfide, chlorine, ammonium nitrate, manganese compounds, nitric acid, zinc flume or dust, ethylene, and freon 113. Id. Return to text.

[376] In order of ranking, the top three industries, of the SIC Codes 20-39 required to report, were chemicals, paper products and primary metals. 1987 TRI REPORT, supra note 195, at 14-15. Together these industries were responsible for seventy-eight percent of all releases and transfers. Id. The chemical and allied products industry alone produced more than half of the TRI total for all industries, roughly 12.1 billion pounds. Id. Paper products and primary metals were the only other industries to report releases and transfers of over 1 billion pounds. Id. Return to text.

[377] The TRI national report for 1988 listed the top fifty facilities with the largest total releases and transfers and the top five facilities for each environmental medium. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, TOXICS IN THE COMMUNITY, 1988: NATIONAL AND LOCAL PERSPECTIVES (EPA 560/4-90-017) 61-62 (September 1990) [hereinafter 1988 TRI REPORT]. The top five facilities each reported more than 100 million pounds of toxic releases in 1988, and included an American Cyanamid factory in Westwego, Louisiana (176 million pounds), Shell Oil operations in Multorco, Louisiana (158 million pounds), a Du Pont facility in Beaumont, Texas (111 million pounds), the Amax Magnesium facility in Ooele, Utah (109 million pounds), and the Monsanto Company in Brazoria, Texas (103 million pounds). Id. For lists of the names and locations of top facilities in subsequent reporting years, see 1989 TRI REPORT, supra note 82, at 63; 1991 TRI REPORT, supra note 238, at 57; 1992 TRI REPORT, supra note 67, at 46; Appendicies 3-4, 6. Return to text.

[378] The TRI national report for 1988 data showed a pattern of concentration of toxic releases from a comparatively small number of companies; this continued to be shown in subsequent reports. The EPA's 1988 report showed that 338 facilities (fewer than two percent of all TRI facilities) operated by ten companies, contributed twenty-five percent (1.6 billion pounds) of the 1988 TRI total. 1988 TRI REPORT, supra note 377, at 171. Du Pont led the list, followed by Monsanto, American Cyanamid, Shell Chemical, BP America, Freeport Mcmoran, Amax, Allied Signal, Asarco, and Occidental Petroleum. Id. See 1989 TRI REPORT, supra note 82, at 66; 1991 TRI REPORT, supra note 238, at 58; 1992 TRI REPORT, supra note 67, at 49 (for lists of the names and locations of the top facilities in subsequent reporting years); Appendicies 3-4. Return to text.

[379] For example, the EPA national report for the 1991 TRI data revealed that industries generated nearly 3.8 billion pounds of waste containing TRI materials, in addition to 3.4 billion pounds of toxic releases, into the environment. 1991 TRI REPORT, supra note 238, at 15. EPA Administrator Carol M. Browner pointed out that the toxic waste generated was enough to "fill a line of tanker trucks that would stretch bumper-to-bumper half way around the world." Carol M. Browner, Statement on '91 Toxics Release Inventory, available in RTK-NET, Entry No. 4134 (May 25, 1993). Return to text.

[380] 42 U.S.C. §§ 11023(h), 11044 (1988 & Supp. V 1993). Return to text.

[381] The EPA makes this information public in a computerized "Toxics Release Inventory"¾the first publicly accessible on-line environmental database ever mandated by federal law. 1992 TRI REPORT, supra note 67, at B-1. Accessing TRI data is easy. The EPA provides the data in a variety of common computer and hard-copy formats which are meant to ensure that everyone can easily use the information. Id. Over 4000 libraries have TRI data in their collections. Id. TRI is available on diskette, CD-ROM, magnetic tape and computer bulletin boards. Id. The EPA makes the data available on an on-line national computer database. Id. The EPA maintains user support services for TRI and other EPCRA data. Id. The TRI reports can be obtained from the states and the EPA. Id. There are many other routes for accessing TRI data. Id. The three main sources of on-line access to TRI data are the National Library of Medicine (NLM) TOXNET System, the Integrated Risk Information System (IRIS), and the Right-to-Know Network (RTK-NET). Id. at B-2. The first two are operated by the federal government; the EPA provides TRI data. TOXNET provides user-friendly on-line searching for TRI data and IRIS contains health-risk assessment and adverse health effects information from the EPA. Id. RTK-NET is an on-line network and news group concerned with environmental issues, particularly matters arising from EPCRA. It is operated by OMB-Watch, a nonprofit public interest group that advocates for the public's right to know, and Unison Institute, a center for computer systems and software technology in the public interest. RTK-NET was used extensively in the preparation of this Article. For electronic media, TRI data is available in diskettes and magnetic tapes from the National Technical Information Service (NTIS) and two kinds of CD-ROM. Id. at B-3. TRI CD-ROM contains the national TRI reporting for all reporting years and can be obtained from NTIS, the Government Printing Office, the Federal Depository Libraries and the EPA Regional Offices. The NESE-DB (National Economic, Social and Environmental Data Bank) CD-ROM also includes TRI state data and national public data release files, along with other socio-economic data from over fifteen federal agencies. It is available from the Department of Commerce, NTIS, and selected federal depository libraries. For printed media, the EPA has provided a TRI information kit, detailed annual reports on TRI, microfiche for TRI, and facsimiles of TRI facility reports. Id. at B-3, B-4. The federal government has created three other databases and bulletin boards relevant to the TRI. TRI-FACTS complements environmental release data on TRI chemicals by providing information related to health, ecological effects, and the safety and handling of these chemicals, and is available on TOXNET and the TRI CD-ROM. Id. at B-4. The 313 ROADMAPS DATABASE is accessed through NTIS and was developed to assist TRI users in performing preliminary, site-specific exposure and risk assessments. Id. The Government Printing Office provides an electronic bulletin board with state specific TRI data. Id. The EPA provides telephone assistance services to help with TRI and EPCRA. The TRI-US Service provides general information about the TRI and access to data formats. The Emergency Planning and Community Right-to-Know Act Hotline provides regulatory, policy and technical assistance to federal agencies, local and state governments, the public and the regulated community. Id. at B-5. The EPA has also published guidance documents for using the TRI data. Id. Return to text.

[382] GAO REPORT, supra note 262, at 25. Return to text.

[383] Id. Return to text.

[384] Two dozen national groups and 1500 state and local groups are affiliated with the Working Group on Community Right-to-Know, a network of environmental and public interest groups. 1994 ON-LINE: THE RTK NET NEWSLETTER, Vol. 3, No. 4, Spring 1994, available in RTK-NET, Entry No. 5897 (August 15, 1994). These groups are some of the chief users of RTK-NET, which they employ to communicate with each other and the public over right-to-know and other environmental issues. US-PIRG is the host organization for the Working Group. Id. The Working Group uploads bi-monthly newsletters to the Newsletters section of RTK-NET and uses the network to communicate other notices of current activities. RTK-NET now provides on-line computer access to: the annual toxics release reports; a database of chemical accidents; facility Clean Water Act permits; summaries of Department of Justice suits against polluters; census data; and other environmental information. When the EPA calls for comments on environmental rules, environmentalists use the NET to communicate through e-mail¾exchanging messages, documents and sample comments. The administrators of the computer network also gather information relevant to EPCRA and respond to other requests for information. Return to text.

[385] GAO REPORT, supra note 262, at 25. Return to text.

[386] See id. at 74-76 (listing thirty-one reports from environmental and public interest groups), and infra note 388 listing over 150 reports (cited in Reports Using Toxics Release Inventory (TRI) Data, available in RTK-NET, Entry No. 5962 (Sept. 10, 1984) [hereinafter Reports], con sisting of a listing of nearly 200 published reports and other documents utilizing TRI data generated under EPCRA). Return to text.

[387] See Reports, supra note 386. See, e.g., CALIFORNIA PUBLIC INTEREST RESEARCH GROUP, TOXIC HAZARDS IN LOS ANGELES COUNTY (Apr. 1989) (discussing "LA's toxic releases¾which would fill an end-to-end stack of 55 gallon drums 110 miles high¾in the context of toxics use reduction and the limits to risk assessment"); ROBERT HOGNER, COLLEGE OF BUSINESS ADMINISTRATION, FLORIDA INTERNATIONAL UNIVERSITY, FLORIDA'S TOXIC SOUP: TRACKING TOXIC TRENDS (outlining "Florida's toxic releases with charts for principle chemicals, companies, and counties"); CITIZENS FOR A BETTER ENVIRONMENT, TOXIC AIR POLLUTION IN ILLINOIS: AN ANALYSIS OF 1987 TOXIC RELEASE INVENTORY REPORTS (Feb. 1989) (examining "toxic emissions in Illinois, with a focus on air toxics"); GREENPEACE USA, TOXIC WASTE AND MORTALITY IN LOUISIANA'S CHEMICAL CORRIDOR (Nov. 1988) (comparing "the nation's highest concentrations of TRI releases to elevated local cancer and mortality rates"); CLEAN WATER ACTION, WATER POLLUTION CONTROL IN MAINE (Feb. 1994) (documenting "pollution problems in Maine and advocates that polluting industries bear a greater portion of the cleanup costs"); CLEAN WATER ACTION FUND/ECOLOGY CENTER OF ANN ARBOR/PIRG TOXIC ACTION PUBLIC INTEREST RESEARCH GROUP IN MICHIGAN, DANGER: TO THE OZONE LAYER IN MICHIGAN (July 1989) (documenting "the contribution of Michigan companies" to the ozone depletion crisis); CLEAN WATER FUND OF NORTH CAROLINA, PRELIMINARY FINDINGS FROM A STUDY OF THE UPPER FRENCH BROAD RIVER BASIN (Mar. 1991) (using "data from TRI and other sources [to] document serious toxic loadings into the Upper French Broad River, a potential drinking water supply for the Asheville-Buncombe county area"); SIERRA CLUB, APPALACHIAN REGIONAL OFFICE, TOXIC AIR POLLUTION IN VIRGINIA (Jan. 1990) (examining "state and federal air pollution regulations in the context of Virginia's 1987-88 air toxics data"); NATIONAL INSTITUTE FOR CHEMICAL STUDIES, WEST VIRGINIA SCORECARD [1991]: POLLUTION REDUCTION AND PREVENTION IN WEST VIRGINIA INDUSTRY (Jan. 1993) (presenting "statewide emissions data by industry, chemical, and area, with narrative information on individual chemical facilities' prevention and control technologies, facility contacts, and corporate goals"). Return to text.

[388] See Reports, supra note 386. See, e.g., CENTER FOR CLEAN PRODUCTS AND CLEAN TECHNOLOGIES, UNIVERSITY OF TENNESSEE KNOXVILLE, EVALUATION OF TRI RELEASES IN INDIANA, LOUISIANA, OHIO, TENNESSEE AND TEXAS (June 1993) (comparing the total releases and transfers for top states, industries, and chemicals, and developing a chemical hazard ranking method to assess potential hazards); CITIZENS FUND, POISONING THE GREAT LAKES: MANUFACTURERS' TOXIC CHEMICAL RELEASES (Apr. 1992) (compiling the TRI data for the Great Lakes Watershed and surrounding states to present top releases by chemical, health effects, release medium, facility, and industry with basic analysis and policy recommendations). Return to text.

[389] See Reports, supra note 386. See, e.g., CITIZENS FUND, POISONS IN OUR NEIGHBORHOODS: TOXIC POLLUTION IN [STATE] (Oct. 1989) (using 1987 data and beginning an annual series of 50 state-specific reports which comprehensively presents each state's TRI releases by company, industry, county, zip code and toxicity); NATIONAL ENVIRONMENTAL LAW CENTER/ U.S. PUBLIC INTEREST RESEARCH GROUP, TOXIC TRICK OR TREATMENT: AN INVESTIGATION OF TOXIC DISCHARGES TO OUR NATION'S SEWERS (Oct. 1991) (targeting for reduction the half billion pounds of toxics dumped into public sewers in 1989, including discharges that sewer systems are not equipped to treat). Return to text.

[390] See Reports, supra note 386. See, e.g., FRIENDS OF THE EARTH, KNOW MORE TOXICS: WILL COMPANIES GIVE CITIZENS AROUND THE WORLD THE RIGHT TO KNOW? (July 1992) (involving request by environmental group to forty-three international chemical companies for TRI-equivalent data on overseas toxics releases, with only eleven providing data, despite widespread participation in voluntary "Responsible Care" and "33/50" programs). Return to text.

[391] GAO REPORT, supra note 262, at 25. Return to text.

[392] See Reports, supra note 386. See, e.g., CITIZENS FUND POISONS IN OUR NEIGHBORHOODS: TOXIC POLLUTION IN THE U.S., VOL. 1: NATIONAL OVERVIEW, VOL. 2: TOXIC WASTE IN THE STATES, ALABAMA - MICHIGAN, VOL. 3: TOXIC WASTE IN THE STATES, MINNESOTA - WYOMING (Nov. 1993) (comprising comprehensive volumes which examine total TRI releases across the country, pollution prevention activities, and potential health risks and including "pollution prevention report card" for top facilities); NATIONAL WILDLIFE FEDERATION, PHANTOM REDUC TIONS: TRACKING TOXIC TRENDS (Aug. 1990) (examining changes in EPA's 1987-88 national TRI reports for twenty-nine major dischargers, finding both real pollution prevention and "phantom" paper changes); U.S. PIRG, TRUST US, DON'T TRACK US (1992) (investigating the chemical industry's "responsible care" program and casting doubt on its motives and supposed accomplishments). Return to text.

[393] "Environmental racism" has recently become a major area of concern to environmental scholars and activists alike. Discussion and study has been directed at whether there is a relationship between socio-economic status, race and environmental degradation. See Vicki Been, Analyzing Evidence of Environmental Justice, 11 J. LAND USE & ENVTL. LAW 1 (1995). One major review of literature on the subject notes that while some researchers have found race the most important factor, others find it is class, and still others are unable to conclude one way or another. However, the preponderance of the evidence so far suggests that while obviously highly correlated with each other and difficult to disaggregate: (1) race and class have independent effects; and (2) race is the more important factor. Paul Mohai & Bunyan Bryant, Environmental Racism: Reviewing the Evidence, in RACE AND THE INCIDENCE OF ENVIRONMENTAL HAZARDS: A TIME FOR DISCOURSE. 163-76 (Bryant & Mohai eds., 1992).

For use of TRI data in studying environmental justice issues, see LAURETTA M. BURKE, CENTER FOR GEOGRAPHIC INFORMATION/ANALYSIS, UNIVERSITY OF CALIFORNIA SANTA BARBARA, ENVIRONMENTAL EQUITY IN LOS ANGELES (July 1993) (mapping significant relationships between race, income, and proximity to industrial toxic emissions in Los Angeles); CITIZENS FOR A BETTER ENVIRONMENT, RICHMOND AT RISK: COMMUNITY DEMOGRAPHICS AND TOXIC HAZARDS FROM INDUSTRIAL POLLUTERS (Feb. 1989) (analyzing toxics-release reports together with demographic data to reveal the disproportionate toxic burden borne by low income, minority citizens); INSTITUTE FOR ENVIRONMENTAL ISSUES AND POLICY ASSESSMENT, SOUTHERN UNIVERSITY, BATON ROUGE, MISSISSIPPI RIVER SOUNDINGS: ENVIRONMENTAL STRATEGIES FROM BATON ROUGE TO NEW ORLEANS (Nov. 1992) (using the TRI data to help characterize socio-economic and environmental conditions; this study launches a five-year program to reduce environmental risk along the Mississippi River corridor from Baton Rouge to New Orleans). Return to text.

[394] PROGRESS REPORT, supra note 261, at 5, 22. See also NITA SETTINA, CENTER FOR POLICY ALTERNATIVES, MAKING THE DIFFERENCE, PART II: MORE USES OF RIGHT-TO-KNOW IN THE FIGHT AGAINST TOXICS, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW SUBJECT: SEPTEMBER- OCTOBER 1991 WORKING GROUP ON CRTK NEWSLETTER, available in RTK-NET, Entry No. 2100 (Oct. 25 1991) [hereinafter RTK-NET Entry No. 2100]. Return to text.

[395] PROGRESS REPORT, supra note 261, at 5, 22. See also RTK-NET Entry No. 2100, supra note 394. Return to text.

[396] PROGRESS REPORT, supra note 261, at 5, 22. See also RTK-NET Entry No. 2100, supra note 394. Return to text.

[397] PROGRESS REPORT, supra note 261, at 5, 22. See also RTK-NET Entry No. 2100, supra note 394. Return to text.

[398] PROGRESS REPORT, supra note 261, at 5, 22. See also RTK-NET Entry No. 2100, supra note 394. Return to text.

[399] PROGRESS REPORT, supra note 261, at 5, 22. See also RTK-NET Entry No. 2100, supra note 394. Return to text.

[400] PROGRESS REPORT, supra note 261, at 5, 22. The Massachusetts Public Interest Research Group (MassPIRG) used TRI data to identify and target Raytheon with a public accountability campaign. Under the toxics release inventory, Raytheon reported emitting 3.6 million pounds of the stratospheric ozone eaters CFC-113 and methyl chloroform over a two year period (1987-88). MassPIRG issued a report called "Local Error, Global Terror" which revealed the huge Raytheon releases that made it the largest emitter of ozone depleting substances in the state. The report drew extensive press coverage. Initially the company showed no signs of reducing ozone emissions. MassPIRG raised the issue at a Raytheon stockholders meeting, drawing extensive press coverage again. The meeting included a shareholder resolution sponsored by the Evangelical Lutheran Church calling for a phase-out. Also attending the meeting were high school students from Andover, Massachusetts, who had chosen a neighboring Raytheon factory as a topic of concern. The students exhibited petitions and letters urging the company to address the issue. Raytheon relented and, in a joint press conference with MassPIRG, announced a corporate pledge to replace the ozone-destroying substances with safer alternatives. Ozone Advocates Score Victory (1991), available in RTK-NET, Entry No. 1943 (May 28, 1991). Return to text.

[401] PROGRESS REPORT, supra note 261, at 5, 22. Return to text.

[402] Id. The residents of Boerum Hill, a Brooklyn, New York neighborhood were frustrated by their inability to convince officials to control the nail polish-like fumes from Ulano, a graphic art supplies manufacturer releasing the toxic chemical toluene into the air. The fumes were so bad they were blamed by residents for recurring headaches and nausea. The residents finally got results when they obtained TRI data. This information made their case that the plant was the city's worst toxic air polluter and the resultant outcry led to immediate reductions in the plant's emissions. A small group of local citizens formed the Boerum Hill-South Brooklyn Clean Air Committee, staged demonstrations with gas masks, and sent state representatives odor report cards. Not much happened until TRI quantified the problem and gave citizens a tool for action. The Consumer Policy Institute (CPI), a division of Consumers Union, used 1988 TRI data to prepare a May 1990 report identifying Ulano as the top industrial toxic air polluter in New York City. It showed that Ulano was responsible for seventeen percent of the city's toxic air pollution as reported in the 1988 TRI data. The CPI report was released in a press conference co-sponsored by the Boerum Hill Committee and drew extensive media attention. On the same day, the New York State Department of Environmental Conservation (DEC) announced Ulano would be ordered to begin using a new incinerator to reduce emissions by July 18, 1990, or face stiff fines. The DEC contended that incineration would reduce toluene emissions by ninety-five percent. The residents felt that they had won a significant victory. RTK-NET Entry No. 2100, supra note 394.

The ASLF of New York has led the way in bringing and winning citizen suits to enforce the TRI requirements and other mandates of EPCRA and winning pollution prevention concessions from industry. See supra notes 351-58 and accompanying text. Return to text.

[403] PROGRESS REPORT, supra note 261, at 5, 22. The experience in Northfield is particularly interesting. The TRI data helped bring community and labor leaders together to achieve reduction of a company's toxic emissions. Officials of the Amalgamated Clothing and Textile Workers Union (ACTWU), fearful over workers' exposure to methylene chloride, had been battling for years to convince Sheldahl, Inc. to reduce worker exposure. It was not until TRI data became available that the community's residents became aware that they too were at risk. This small rural community learned from the TRI data that the local plant was the forty-fifth largest emitter in the nation of an air pollutant suspected of causing cancer. This revelation led to the formation of two citizens' groups, the Northfield Air Toxics Study Group (ATSG) and Clean Air in Northfield (CAN). The increased citizen concern and media attention about Sheldahl's toxic releases happened alongside tense contract negotiations between Sheldahl and the ACTWU. The union officials quickly incorporated community concerns into contract negotiations with Sheldahl. The company agreed to phase-out use of the chemical by the year 2000. RTK-NET Entry No. 2100, supra note 394. See also Carol M. Browner, Statement on '91 Toxics Release Inventory (1993), available in RTK-NET, Entry No. 4134 (May 25, 1993). Return to text.

[404] PROGRESS REPORT, supra note 261, at 5, 22. Return to text.

[405] 1991 ON-LINE: RTK NET NEWSLETTER, FALL 1991, available in RTK-NET, Entry No. 2087 (October 22, 1991). Return to text.

[406] The National Toxics Campaign announced that it is planning to mobilize as many as 100 local campaigns to get industries to sign legally binding good neighbor agreements to reduce pollution and use of toxic and ozone-destroying chemicals. Sanford J. Lewis, Citizens as Regulators of Local Polluters and Toxics Users, NEW SOLUTIONS, Spring 1990, at 20. One of the aims of a good neighbor agreement is for citizens to secure more protection than a standard government order to comply with existing regulations. Id. The conditions on facilities which citizens have sought in these agreements include: providing a study and reduction of toxic chemical usage and waste generation; furnishing technical assistance to residents to review the firm's activities; permitting residents the right to inspect the facility on a regular basis; establishing chemical accident prevention programs; and granting citizens the right to ongoing participation in a company health and safety committee handling decisions about toxics. Id.

The Minnesota branch of Citizens for a Better Environment (CBE) has undertaken a "good neighbor project." Project Spurs "Good Neighbor" Involvement, available in RTK-NET, Entry No. 9722 (Feb. 6, 1995). The purpose of the project is to create broad-based community representation in pollution prevention at local facilities. CBE indicates it begins the process by raising community awareness of local toxic pollution and by stressing the importance of prevention. After meeting with the community the next step is to request a non-adversarial dialogue with local facilities to develop prevention goals and commitments for the company. CBE provides the technical assistance needed for citizens to work proactively with facilities. Id.

The starting point for community education is CBE's report called "Get to Know Your Local Polluter." Id. The report includes a succinct step-by-step process to take communities through a good neighbor agreement with a facility in a non-adversarial manner. It also includes toxic profiles for Minnesota's top forty toxic polluters. The profiles furnish citizens in a simple format with the basic information needed to begin constructive discussions, including business information, labor contacts, community resources, right-to-know data, health effects information, a regulatory history, and census data for surrounding populations. Many of the facilities in the profiles are in low and moderate income communities. CBE has been working with eighteen communities covered by the profiles, which include rural, suburban, and urban areas. Id.

CBE stresses that it attempts to create non-adversary communications with facilities with toxic generation problems. Id. Part of the technical assistance CBE provides to communities is from the Boston-based Environmental Careers Organization (ECO), which links retired engineers with non-profit organizations that are addressing toxics issues. Through this program, CBE hired a technical advisor who goes through a plant at no cost and develops pollution prevention recommendations.

The range of results in the project include a pollution prevention audit for a foundry and a pollution prevention plan from Ford Motor. In the foundry example, the ECO engineer obtained by CBE worked with the facility to create a three to six year capital plan to phase in both pollution prevention and additional controls. The foundry in turn approached its suppliers about lowering the toxic content of raw materials, and developed a thirty-month revolving safety training plan. At first the foundry rejected CBE's offer of involvement in a good neighbor project but eventually agreed to meet with CBE and community members. Ford gave CBE their pollution prevention plan, which no other facility had done voluntarily. CBE noted that Ford relied extensively on pollution discharge technologies but that they have moved to pollution prevention measures. These pollution prevention measures include a paint that has lower emissions, an employee program to reduce the amount of grease and grime coming off the assembly line, and more water-based cleaning to remove oil and grease before painting. CBE is also working with the United Auto Workers Union to get them more involved in encouraging pollution prevention measures at Ford which reduce the chemical exposure of workers. Id.

Another resource created by CBE's Good Neighbor Project is MAKING OUR LOCAL INDUSTRIES CLEAN AND SAFE THROUGH NEIGHBOR- LABOR AUDITS, an easy to read fifteen-page fact sheet on the concepts, case studies, and sample laws and programs for establishing local health and environmental safety audits of industrial facilities. Good Neighbor Audits, WORKING NOTES ON COMMUNITY RIGHT- TO-KNOW, NOVEMBER-DECEMBER 1994 "WORKING NOTES" NEWSLETTER, available in RTK-NET, Entry No. 9722 (Feb. 6, 1995).

The TRI data has been responsible for spurring a good neighbor agreement in Boulder, Colorado. RTK-Net Entry No. 2100, supra note 394. Boulder, the home of the University of Colorado, prides itself on environmental sensitivity. To the surprise of many residents, press reports of the TRI data showed Boulder County has consistently ranked among the top counties in the state of Colorado for toxic air emissions. The press reported the pharmaceutical manufacturer Syntex Chemicals Corporation to be the largest source of toxic air emissions in the Boulder area. The company found this disclosure to be a public relations embarrassment. It willingly agreed to meet with local citizens and elected officials for a public meeting in 1990. By 1991, Syntex indicated a desire to pledge itself to be a "good neighbor" to reduce emissions. The company's headquarters in Palo Alto, California, signed a good neighbor agreement to cut its 1989 reported toxic air emissions fifty percent by 1994. Syntex further promised to set up a citizen advisory panel to serve as a channel to improve the company's communication with the public and to help maintain the company's accountability. Id.

Not all good neighbor agreements start out positively or are non-adversarial. JANUARY- FEBRUARY, 1993, "WORKING NOTES" NEWSLETTER, NEWSLETTER OF THE WORKING GROUP ON COMMUNITY RIGHT- TO-KNOW, available in RTK-NET, Entry No. 4243 (June 12, 1993). An example occured when the inspection and monitoring agreement community and environmental groups in Texas negotiated with a Houston area chemical plant owned by Rhone-Poulenc. Community groups, working with the statewide environmental organization, Texans United, won the agreement from the giant petrochemical firm Rhone-Poulenc to get information, negotiate safety improvements and inspect its plant in Manchester, Texas. Manchester is a low-income, minority community in the midst of large petrochemical plants along the Houston Ship Channel. The chemical company specifically agreed to permit community representatives to participate in annual safety audits that would physically inspect the plant, interview workers and review documents. The documents included hazard assessments, risk analyses, emergency response, waste reduction plans, and other non-confidential information. Rhone-Poulenc also agreed to model accident scenarios in consultation with the community, fund a citizens' health survey, and permit independent verification of water samples. Id.

Community leverage and the company's fear of a public relations black eye were the main reasons Rhone-Poulenc agreed to the good neighbor pact. Two events created this leverage and fear. First, in June 1992, Rhone-Poulenc spilled poisonous sulfur dioxide that injured twenty-seven people. Second, a public hearing on a plant environmental permit gave citizens and Texans United an event around which they could organize and concentrate their concerns. Manchester citizens, which included employees of Rhone-Poulenc, agreed to drop opposition to the company's permit changes and instead sought a degree of oversight under a legally binding agreement. Rhone-Poulenc chose to accommodate the community rather than experience bad relations. Id. See also Paper and Airplanes in Washington, ON-LINE: THE RTK-NET NEWSLETTER, Vol. 3, No. 2, Fall 1993, available in RTK-NET, Entry No. 4706 (Nov. 5 1993) (reporting efforts of an environmental group from Washington state and British Columbia to negotiate a good neighbor agreement with Boeing Company concerning their toxic emissions and pollution prevention practices). Return to text.

[407] GAO REPORT, supra note 262, at 26. Return to text.

[408] PROGRESS REPORT, supra note 261, at 8-9. Return to text.

[409] GAO REPORT, supra note 262, at 26 (citing Special Report: Tracking Toxics, USA TODAY (July 31-Aug. 2, 1989)). The series described air, ground, and water emissions for each state and 500 counties where the release of toxic chemicals was the greatest and identified the top toxic polluters in the country. In the first day of the series, five articles covered various aspects and implications of the TRI data. Rae Tyson et al., The Chemicals Next Door: A First Peek Behind the Plant Gates, USA TODAY, July 31, 1989, at A1 (focusing on Jefferson County, Texas and noting its residents can almost always smell the odor of gasoline in the air and are constantly reminded that their county, which has several refineries, is one of the most polluted by toxic releases in the nation); Rae Tyson, Land: Firms Say Volume Being Cut, USA TODAY, July 31, 1989, at B5 (reporting that the EPA's TRI has spurred efforts to reduce the volume of hazardous wastes, especially that dumped in landfills); Rae Tyson, Treated Like an "Open Sewer", USA TODAY, July 31, 1989, at B5 (reporting that the EPA's TRI shows that manufacturers released 2.6 billion pounds of toxic pollutants into the air in 1987, indicating that environmentalists hoped the data would provide impetus for tougher air pollution laws); Rae Tyson, Water: Toxics Flow with the Mississippi, USA TODAY, July 31, 1989, at B5 (noting that although the EPA's TRI has shown that the Mississippi was a dumping ground for a staggering 232 million pounds of toxic chemicals in 1987, some officials contend water quality has improved); Rae Tyson, Companies Leading the List: Factories Leading the List, USA TODAY, July 31, 1989, at B5 (showing in a table the top 10 companies and the top 10 factories emitting the greatest volume of toxic chemicals into the environment in 1987, with the Aluminum Company of America topping both lists). Return to text.

[410] GAO REPORT, supra note 262, at 26 (reporting that in March and June 1989, ABC-TV's WORLD NEWS TONIGHT made the inventory the focus of news stories spotlighting the country's toxic pollution problems). Return to text.

[411] See, e.g., Toxic Releases Down in Va., WASH. POST, Jan. 16, 1990, at B7 (according to a report by Virginia's Sierra Club, toxic air emissions in the state remained "staggering" despite a reduction from 1987 to 1988); Christine Russell, How EPA's New Toxics List Can Help Trace Nearby Hazards, WASH. POST, June 27, 1989, at WH8 (featuring the EPA's new Toxic Release Inventory); Larry Tye, High-Tech Industry Cited for Pollution, BOSTON GLOBE, Apr. 26, 1989, at 29 (reporting a study by the Massachusetts Public Interest Research Group which showed that the electronics and computer industries of the state accounted for nearly a third of all reported toxic releases to the air and water); Phillip Shabecoff, Industrial Pollution Called Startling, N.Y. TIMES, Apr. 13, 1989, at D21 (reporting that the first national inventory of toxic releases in the nation's environment has shown that manufacturers disposed of at least 22.5 billion pounds of hazardous substances in 1987, which is much higher than expected); Gary Hendricks, Forest Park Plant Trims Toxic Release Report, ATLANTA CONSTITUTION, Sept. 19, 1991, at XI2 (reporting that a Georgia facility of American National Can Company revised downward the amount of toxic materials it reported releasing in 1990, after being surprised by figures that showed pollution increasing nearly forty percent in a year's time); How Companies Stack Up in Terms of Toxic Releases, ATLANTA CONSTITUTION, Aug. 22, 1991 (listing the results of the latest TRI reported filed with the Georgia Environmental Protection Division by Cobb County companies); Keith Schneider, Toxic Pollution Shows Drop in '89, N.Y. TIMES, May 17, 1991, at A32 (reporting the results from the third annual TRI for the nation, noting for the second straight year that Texas and Louisiana released more toxic chemicals into the environment than any other state in 1989); Linda Kanamine & Rae Tyson, Both Sides Put Emissions Data to Practical Use, USA TODAY, May 17, 1991, at A10 (reporting that environmental activists and industry find themselves sharing the TRI as the tool in their anti-pollution efforts); Brad Knickerbocker, Toxics Release and the Right to Know, CHRISTIAN SCIENCE MONITOR, Sept. 3, 1992, at 11 (commenting on the effectiveness of EPCRA and noting it was designed to increase public pressure to reform toxic release practices of companies, saying that some evidence suggests that the effects have not been adequate); Group Ties Cut in Toxic Releases to Loopholes, WASH. POST, Aug. 28, 1992, at A11 (reporting industry claims of reduced toxic chemical releases reflected in EPA's fourth annual TRI report result from loopholes in reporting or revised record keeping and not actual pollution cuts); Rae Tyson, Emissions Monitored Since 1986, USA TODAY, May 28, 1992, at A7 (reporting on the fourth annual EPA national report on TRI emissions); Doug Payne, Lockheed Says 1992 Data on Emissions Misleading, ATLANTA CONSTITUTION, March 17, 1994, at XJK1 (reporting that according to the state's annual toxic release report based on the TRI data, Lockheed Aeronautical Systems Co. was Georgia's second worst dumper of cancer-causing chemicals in 1992, and the pollutants generated by the company went up 4000 percent between 1991 and 1992, and discussing the amount of toxic chemicals released in Cobb County); Gary Hendricks, Pollution Up from Industry on Southside, ATLANTA CONSTITUTION, March 17, 1994, at XJN16 (reporting a rise in industrial pollution in south Fulton County, Georgia according to the TRI for 1992 produced by Georgia's Environmental Protection Division); Seth Coleman, Toxic Industrial Emissions Drop, Says State, ATLANTA CONSTITUTION, March 17, 1994, at AJN16 (listing Atlanta companies that reported releasing significant amount of pollutants in 1992); Scott Bernstein, Release of Carcinogens Down¾But Still Hefty, ATLANTA CONSTITUTION, Mar. 12, 1994, at B2 (reporting industries in Georgia reported releases of more than 5.8 million pounds of suspected carcinogens into the environment); Matt Kemper, Air Fairly Free of Toxicity, Report Says, ATLANTA CONSTITUTION, May 27, 1993, at XH3 (noting that dozens of companies lob pollution missiles into the skies of metropolitan Atlanta but that little has occurred in north Fulton County); Scott Bernstein, Ga. Toxic Wastes Decline, ATLANTA CONSTITUTION, May 25, 1993, at A1 (reporting on toxic releases of Georgia industries in 1991). Return to text.

[412] Bud Ward, American Journalism Has a New Arrow in its Quiver, ENVIRONMENTAL HEALTH, Feb. 1992, at 63. Return to text.

[413] Id. Return to text.

[414] PROGRESS REPORT, supra note 261, at 8. A preliminary review of 100 stories from large urban dailies found that less than twenty percent of reporters access the TRI data themselves. Id. (citing F. Kent Goshern, Electronic Journalism and the Public's Right-to-Know: The Toxics Release Inventory, paper for presentation to the American Environmental Journalism and Media Conference 1992 Convention, Montreal). Return to text.

[415] PROGRESS REPORT, supra note 261, at n.14 (citing Frances Lynn et al., The Toxic Release Inventory: Environmental Democracy in Action, EPA/700-F-92-001 (a report of the United States Environmental Protection Agency)). One source through which journalists have accessed TRI data is an environmental database called RTK-NET (Right-to-Know Computer Network). RTK-NET is a joint project of Unison Institute and OMB Watch. The Unison Institute is a center for computer systems and software technology in the public interest. OMB Watch is a nonprofit public interest group that advocates for the public's right-to-know and greater government accountability. The RTK-NET publishes and republishes papers and documents concerned with the public's right-to-know, contains and offers access to TRI and other EPA databases, and trains and assists citizens, citizen organizations, and the press on how to use environmental data. RTK-NET reports significant use of its database and on-line publications by journalists. Making the Most of RTK-NET, Pressing the Right-to-Know, ON- LINE: RTK-NET NEWSLETTER, FALL 1991, available in RTK-NET, Entry No. 2087 (October 22, 1991).

Reporters from a suburban Boston newspaper chain with 165,000 readers used the RTK-NET to access the TRI data for an investigative series on lead in local schools. Id. Massachusetts requires that all school children be screened for lead poisoning. The paper identified local factories that release lead. They included information on lead's health effects from the New Jersey Fact Sheets obtained from the RTK-NET database. The newspaper then planned to run lab tests of the actual lead levels in drinking water at twenty-two schools. The final articles sought to combine TRI data obtained in the RTK-NET with the results of these lab tests and the state's screening data. Using the RTK-NET, a reporter at the KNOXVILLE NEWS- SENTINEL in Tennessee recently wrote a story about a nearby Alcoa aluminum plant, one of the nation's largest emitters of TRI chemicals. Id. The story spotlighted the plant's PCB emissions. The reporter planned to investigate "everything" that is going into the drinking water of Knoxville by searching for TRI releases to the Tennessee River. The RTK-NET is also used by the publisher of a monthly Florida newspaper called the PRO EARTH TIMES. Id. Nearly every issue reports on the emissions of at least one of the largest local polluters, which includes Monsanto, Champion International, and Air Products. See, e.g., Oliver, Alachua County Citizens Fight to Protect Clean Air and Property Values, PRO EARTH TIMES, January 1996, at 10 (discussing Florida Rock Industries, Inc.'s drive to put a cement plant 2.5 miles outside of Newberry, Florida). The monthly publication has also reported on releases by an Ohio company that local boosters sought to draw to the Florida panhandle.

The Washington correspondent for the Thomson Newspapers has used the TRI data in the RTK-NET to identify the five largest local industrial employers in each of the 122 cities that receive the chain's papers. Id. Over the course of a year, he seeks to detail each of these em ployers' toxic releases to air, land and water.

Finally, an instructor at Columbia University's School of Journalism uses RTK-NET to introduce graduate students to the TRI. Id. The instructor believes that detailed and regular investigative reporting which uses the raw TRI data is much more promising than the typical "whizbang" annual stories that simply compile emissions totals.

See also How I Got That Story, ON-LINE: THE RTK-NET NEWSLETTER, WINTER 1993, available in RTK-NET, Entry No. 3866 (April 21, 1993); Reporting on the Right-to-Know, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW, MAY 1991; WORKING GROUP ON CRTK NEWSLETTER, available in RTK-NET, Entry No. 1945 (June 2, 1991). Return to text.

[416] Ward, supra note 412, at 63. But see F. Kent Goshern, Electronic Journalism and the Public's Right-to-Know: The Toxic Release Inventory (cited in PROGRESS REPORT, supra note 261, at 8) (finding in a preliminary review of 100 stories from large urban dailies that less than twenty percent of reporters accessed the TRI databases themselves, but that most relied on TRI information passed on second hand by environmentalists). Return to text.

[417] PROGRESS REPORT, supra note 261, at 8. Return to text.

[418] Id. at 1, 8-9. Return to text.

[419] Id. at 9. Return to text.

[420] U.S. PUBLIC INTEREST RESEARCH GROUP, FACT SHEET ON RIGHT TO KNOW MORE ACT OF 1991 (S. 2123) AND THE HAZARDOUS POLLUTION PREVENTION PLANNING ACT (S. 761) (June 1991) (unpaginated). Return to text.

[421] Id. Return to text.

[422] PROGRESS REPORT, supra note 261, at 9. Return to text.

[423] GAO REPORT, supra note 262, at 23. One of the sponsors of EPCRA predicted the law would have this effect. James J. Florio, A Law that Can Help Scrub the Air, N.Y. TIMES, June 24, 1988 (Congressman Florio predicted that, "[f]rom the right to know will flow the right to demand, and get, tougher laws and safer practices"). Return to text.

[424] Pub. L. No. 101-508, Nov. 5, 1990 (codified at 42 U.S.C. §§ 13101- 13109 (1988 & Supp. V 1993)). The reports became due July 1, 1992. The data required by the Act added large amounts of chemical wastes to the inventory: wastes which are recycled, treated or sent to energy recovery facilities. In the first reporting year alone the waste totaled 38 billion pounds, compared to 3.4 billion pounds of direct release to the environment that were reported under the conventional TRI reporting for releases and transfers. STATEMENT ON '91 TOXICS RELEASE INVENTORY BY EPA ADMINISTRATOR CAROL M. BROWNER, available in RTK-NET, Entry No. 4134 (May 25, 1993). This amount of waste is the equivalent of a line of tank trucks that stretches half way around the world. Id. The Pollution Prevention Act, which is meant to fix the "recycling loophole," allowed companies to sidestep federal right-to-know reporting requirements by shipping toxic waste to "recycling" facilities such as incinerators. RTK-NET, Entry No. 2070 (October 21, 1991). These shipments were regarded by critics as a regular source of serious harm to public health and the environment. The bulk of the off-site "recycling" shipments were known to be burned in unregulated cement kilns, blast furnaces and industrial boilers. Large amounts were also sent off-site to solvents or metals recovery operations. Report Targets "Recycling" Loophole, available in RTK-NET, Entry No. 225 (May 16, 1991) (reprinting an article which appeared in the February/March 1991 edition of WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: A WORKING PAPER ON OUR RIGHT- TO-KNOW ABOUT TOXIC POLLUTION, the newsletter of the Working Group on Community Right-to-Know, the article summarizing the results of a report by several environmental organizations entitled THE "RECYCLING" LOOPHOLE IN THE TOXICS RELEASE INVENTORY: OUT OF SITE, OUT OF MIND). It was alleged that companies were shipping at least 197 million pounds of toxic chemicals off-site for "recycling" or "reuse" without having to report these transfers under the TRI. Environmental critics contended this reporting loophole undermined the public's right-to-know about shipments of toxic wastes and reduced the usefulness of TRI data for monitoring industrial pollution prevention activities. Id. The problems that are regularly caused by hazardous waste recycling include worker exposure, site contamination, air emissions, transportation accidents, fires, spills, incomplete combustion, and other failures and releases. Id.

The Pollution Prevention Act added reporting requirements for source reduction and recycling. The legislation specifically requires facilities that must comply with toxic release and transfer reporting requirements of section 313 of EPCRA to provide source reduction and recycling data and authorizes the EPA to amend the form for reporting under section 313 of EPCRA (EPA Form R) to include this additional information. 42 U.S.C. § 1306 (1988 & Supp. V 1993). The additional data to be gathered includes information on the quantity of reportable chemical in waste, the quantity entering treatment and recycling, the quantity released as a result of remedial actions or other one-time events not associated with production processes, a description of source reduction activities and the techniques used to identify opportunities for them, and the production ratio or index of another variable that is the primary influence on waste characteristics or volume. 42 U.S.C. § 1306(b) (1988 & Supp. V 1993). The Pollution Prevention Act was enacted to implement a national objective of preventing pollution at the source. This involves the EPA establishing a source reduction program and assisting States in providing technical assistance to industry to implement source reduction programs. 42 U.S.C. § 13101(b) (1988 & Supp. V 1993). Return to text.

[425] Executive Order No. 12856, Aug. 3, 1993, FEDERAL COMPLIANCE WITH RIGHT-TO- KNOW LAWS AND POLLUTION PREVENTION REQUIREMENTS. The federal facilities were also to comply with all the emergency reporting and planning provisions of EPCRA. Among the details of the order were: toxics release reporting was to start with 1993 or 1994 (depending on the agency); reports will be public at the earliest in Spring 1995; voluntary agency-wide goals to reduce toxic releases and transfers fifty percent by 1999; written pollution prevention strategies were required for each agency; revised procurement practices to reduce toxic chemicals; and public access to all strategies, plans, and reports. See also President Directs Federal Agencies to Take Lead in Pollution Prevention, 24 Env't Rep. (BNA) 623 (Aug. 13, 1993).

The EPA originally estimated 500 federal facilities would be covered. Administration Broadens Right-to-Know, ON-LINE: THE RTK NET NEWSLETTER, Vol. 3, No. 2, Fall 1993, available in RTK-NET, Entry No. 706 (Nov. 5, 1993). A more recent figure is that up to 1652 federal facilities, roughly half of which are military services, will have to report. Uncle Sam to Report, WORKING NOTES ON COMMUNITY RIGHT- TO-KNOW, MAY- JUNE 1994 "WORKING NOTES" NEWSLETTER, available in RTK-NET, Entry No. 5839 (July 9, 1994.)

New York enacted a similar kind of legislation which requires state agencies and public authorities to be subject to the TRI reporting. Measure Would Require State Facilities to File Toxic Release Inventory Reports, 25 Env't Rep. (BNA) 511, 511-12 (July 15, 1994). The measure requires state government facilities to report toxic pollution under the TRI starting in 1996 and covers state government facilities such as prisons, transportation operations, and power and port authorities. New York to File Pollution Reports, WORKING NOTES ON COMMUNITY RIGHT- TO-KNOW, SEPTEMBER-OCTOBER 1994 "WORKING NOTES" NEWSLETTER, available in RTK-NET, Entry No. 6929 (Nov. 9, 1994). Return to text.

[426] 1994 ON-LINE: THE RTK NET NEWSLETTER, Vol. 3, No. 4, Spring 1994, available in RTK-NET, Entry No. 5897 (Aug. 15, 1994). The order will reveal large federal pollution sources for the first time. Federal Facilities to Report, Reduce Toxics, WORKING NOTES ON COMMUNITY RIGHT- TO-KNOW, July-Aug. 1993, available in RTK-NET, Entry No. 4594 (September 11, 1993). The United States military alone is alleged to be responsible for some 14,000 toxic hot spots. Id. The executive order was "clearly a victory" for the grassroots groups that supported it, according to a spokesperson for the Military Toxics Network. Id. The executive order was condemned by an industry coalition that included The Chemical Manufacturers Association, Unites States Chamber of Commerce, National Association of Manufacturers, American Forest and Paper Association, the American Petroleum Institute, National Agricultural Chemicals Association, and others. They complained that the executive orders bypassed Congress and constituted a major change in policy. Administration Broadens Right-to-Know, ON-LINE: THE RTK-NET NEWSLETTER, Vol. 3, No. 2, Fall 1993, available in RTK-NET, Entry No. 4706 (Nov. 5, 1993).

The 1994 New York law requiring state agencies and public authorities to report their toxic chemicals was a legislative priority for that state's environmental groups. New York Law Requires Reporting by Agencies, 25 Env't Rep. (BNA) (Aug. 12, 1994). Return to text.

[427] Addition of Certain Chemicals; Toxic Chemical Release Reporting; Community Right-to-Know, 59 Fed. Reg. 61432 (1994) (to be codified in 40 C.F.R. § 372). Return to text.

[428] 59 Fed. Reg. 61432 (1994). The 286 chemicals were added to the 368 chemicals already covered by the TRI, bringing the total to 654. The final list is "slightly smaller" than the one proposed to add 313 chemicals in January 1994. 59 Fed. Reg. 1788 (1994). The EPA had originally proposed expanding the rule to cover 313 chemicals, but some were dropped and others deferred because of technical questions. EPA to Expand List of Chemicals on Toxic Report, WALL ST. J., Jan. 7, 1994, at B5; see also Proposed EPCRA Additions Would Double Number of Chemicals Requiring TRI Reports, 24 Env't Rep. 1619, 1619-20 (Jan. 14, 1994); More Chemicals, available in RTK-NET, Entry No. 9722 (Feb. 6, 1995). See also A List of the 286 Chemicals and Chemical Categories Being Added to EPCRA Section 313 List, available in RTK-NET, Entry No. 8230, December 1, 1994. Return to text.

[429] Changes Modify Right-to-Know, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: NOVEMBER-DECEMBER 1994, available in RTK-NET, Entry No. 9722 (February 6, 1995). In 1992, the EPA considered a petition by the Natural Resources Defense Council, and the Governor of New York, Mario Cuomo, to list eighty chemicals and two chemical categories as toxic because they can cause chronic health effects, such as birth defects, mutations, or cancer. Petition Pushes List Expansion, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: 1992 SEPTEMBER-OCTOBER NEWSLETTER, available in RTK-NET, Entry No. 2753 (October 17, 1992). All the chemicals had been regulated as "chronic toxins" by the EPA under RCRA. NRDC Petitions to Expand TRI, available in RTK-NET, Entry No. 2337 (March 7, 1992). The EPA responded with a proposal to list sixty-eight chemicals and two chemical categories. 57 Fed. Reg. 41020-41046 (Sept. 8, 1992). See also Action Alert, available in RTK-NET, Entry No. 2736 (October 11, 1992); Regulation and Legislation: EPA Proposes Adding New Chemicals to TRI-Solicits Comments, available in RTK-NET, Entry No. 2715 (October 5, 1992). Return to text.

[430] More Chemicals, available in RTK-NET, Entry No. 9722 (Feb. 6, 1995). The EPA indi cated that "Phase I" would be completed after expanding the list to include forty chemicals for which it had deferred action from its original proposal and for persistent bioaccumulative substances, such as dioxin, that fall below current reporting thresholds. Id. "Phase II" would add many currently exempt non-manufacturing industries to the program (a proposal is expected during 1995-96), and "Phase III" will explore ways to require reporting on chemical use and worker exposure. Id. Return to text.

[431] Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 (1994). Return to text.

[432] The expansion added 170 pesticides regulated under FIFRA, joining the twenty-four which had previously been reported under the TRI. EPA to Expand List of Chemicals on Toxic Report, WALL ST. J., January 7, 1994, at B5; Proposed EPCRA Additions Would Double Number of Chemicals Requiring TRI Reports, 24 Env't Rep. 1620 (Jan. 14, 1994). The chemical industry, unsurprisingly, opposed the expansion. Industry Opposes Proposed TRI Expansion; Additions Could Hurt Business, Officials Say, 24 Env't Rep. (BNA) 1922 (Mar. 11, 1994). The industry trade groups opposing the expansion included the Chemical Manufacturers Association, the Chlorinated Paraffins Industry Council, and the major pesticide trade group, the Chemical Specialties Manufacturers Association. Id. While most of the additions were pesticides, significant additions were made for substances regulated under the Clean Air Act, RCRA, Safe Drinking Water Act, and Toxic Substances Control Act. 286 Chemicals Added to TRI Reporting List; Alternative Small-Source Regulation Approved, 25 Env't Rep. (BNA) 1500 (Dec. 2, 1994). Return to text.

[433] See, e.g., "Right-to-Know More" Act, S. 2123 (expanding the list of right to know chemicals, broadening the scope of covered facilities, improving compatibility with other environmental laws, initiating reporting on toxic chemical use and production and requiring industries to develop toxics use reduction plans); H.R. 2880, 102nd Cong., 2d Sess. (1992) (Right-to-Know More Act of 1991) (providing companion House bill to S. 2123, including required toxic pollution prevention planning by industry); S. 761 (Hazardous Pollution Prevention Planning Act) 102nd Cong., 1st Sess. (1991) (requiring companies to develop toxics use reduction plans and goals). See also Regulation and Legislation: First Defeat for the Right-to-Know More, available in RTK-NET, Entry No. 2387 (Mar. 27, 1992) (reporting vote against H.R. 2880 by congressional subcommittee); Regulation and Legislation: Right-to-Know More Legislation Introduced, available in RTK-NET, Entry No. 1760 (July 11, 1991); Half of U.S. Toxic Chemical Releases Come From 10 States, Citizen Action Says, 22 Env't Rep. (BNA) 797 (July 26, 1991); Sikorski Bill Would Significantly Expand Toxics Release Inventory Reporting for Industry, 22 Env't Rep. (BNA) 792 (July 26, 1991); U.S. PIRG Report Says Chemical Companies Lax on Answering Questions; CMA Disputes Findings, 22 Env't Rep. (BNA) 2574 (Mar. 20, 1992); Legislation Would Require More Reporting of Industry's Emissions of Toxic Substances, 22 Env't Rep. (BNA) 1947 (Dec. 6, 1991); DEBORAH A. SHEIMAN, NATURAL RESOURCES DEFENSE COUNCIL, THE RIGHT TO KNOW MORE v (May 1991). Return to text.

[434] COMMONWEALTH ENVIRONMENT PROTECTION AGENCY, NATIONAL POLLUTION INVENTORY PUBLIC DISCUSSION, May 1994, available in AUSTRALIAN ENVIRONMENTAL RESOURCES INFORMATION NETWORK [hereinafter ERIN]. Representatives of non-governmental organizations from ten countries also issued an international declaration setting forth every citizen's right-to-know and right-to-act. The ten point declaration was signed at an international conference on Emergency Preparedness, Response and Prevention held in Veszprem, Hungary in September, 1990. Declaration Sets Forth International Agenda, available in RTK-NET, Entry No. 1943 (May 28,1991). See generally, Charles R. Fletcher, Reconciling GATT and Multilateral Environmental Agreements within the Existing World Trade Regime, 5 J. TRANSNAT'L L. & POL'Y (forthcoming 1996). Return to text.

[435] Border Reports Ordered, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: NOVEMBER-DECEMBER 1994, available in RTK-NET, Entry No. 9722 (February 6, 1995) (reporting that EPA ordered ninety-five companies to submit TRI information, abandoning requests for voluntary toxics release data when only four of the companies provided information). The EPA has also sought to obtain cooperation with the Mexican government for chemical emergency planning on the border. Border Emergency Preparedness to be Discussed, 23 Env't Rep. (BNA) 1688 (Oct. 30, 1992). See also 1989 TRI REPORT, supra note 82, at 321. Return to text.

[436] U.S. Urged to Use EPCRA to Get Climate Treaty Data, 23 Env't Rep. (BNA) 936 (July 24, 1992); Global Right-to-Know Program Suggested as Method to Curb Greenhouse Gas Emissions, 25 Env't Rep. (BNA) 314 (June 17, 1994). Return to text.

[437] Carole L. Macko, Expanded Toxic Chemical Reporting Linked to Right-to-Know, 23 Env't Rep. (BNA) 1692 (Oct. 30, 1992). Return to text.

[438] Pub. L. No. 101-549, Nov. 15, 1990, 104 Stat. 2399 (1990) (codified in various sections of 42 U.S.C. § 7401 (1988 & Supp. V 1993)). Return to text.

[439] The Clean Air Act was actually the Clean Air Act Amendments of 1970. The prior federal statute relied entirely upon voluntary state efforts to control air pollution. 69 Stat. 322 (1955). The 1970 legislation established a national system of air pollution control, administered by the EPA. Pub. L. No. 91-604, 84 Stat. 1705. The EPA had authority under section 112 of the Clean Air Act Amendments of 1970 to regulate toxic air pollutants, designated as "extremely hazardous substances" (EHSs) and under a program to set national standards for hazardous air pollutants frequently referred to by the acronym NESHAPs. ZYGMUNT J.B. PLATER, ET AL., ENVIRONMENTAL LAW AND POLICY: A COURSEBOOK ON NATURE, LAW, AND SOCIETY 790 n.14 (1992). Return to text.

[440] Legislation to Control Air Toxics Needed, Waxman Says in Releasing Toxic Emissions Data, 19 Env't Rep. (BNA) 2512 (Mar. 24, 1989). By 1990, the EPA had designated only eight substances as extremely hazardous substances. NATURAL RESOURCES DEFENSE COUNCIL, A WHO'S WHO OF AMERICAN TOXIC AIR POLLUTERS, A GUIDE TO MORE THAN 1,500 FACTORIES IN 46 STATES EMITTING CANCER-CAUSING CHEMICALS 2 (June 19, 1989) [hereinafter NRDC WHO'S WHO]. These included asbestos, beryllium, vinyl chloride, arsenic, benzene, and radionu clides. Id. The EPA had listed coke emissions, but final emission control regulations had not been issued. Id. at n.2. Return to text.

[441] 1987 TRI REPORT, supra note 195, at 118. The report also lists the TRI emissions for NESHAP air pollutants for 1987. Id. at 121. Return to text.

[442] NRDC WHO'S WHO, supra note 440, at 1. Return to text.

[443] See 42 U.S.C. § 7412(b)(1) (1988 & Supp. V 1993). Compare with 1988 TRI REPORT, supra note 377, at B-1-6 (providing table of the TRI chemicals). See also ENSR CONSULTING AND ENGINEERING, SPECIAL REPORT: PENDING CLEAN AIR ACT AMENDMENTS OF 1990, TITLE III - AIR TOXICS 3-4 (June 1990); Proposed EPCRA Additions Would Double Number of Chemicals Requiring TRI Reports, 24 Env't Rep. (BNA) 1619 (Jan. 14, 1994). Return to text.

[444] President Bush Signs Farm Bill: Public Access to Records Questioned, 21 Env't Rep. (BNA) 1496 (Nov. 30, 1990). Return to text.

[445] Macko, supra note 437, at 1692-94. See also 1989 TRI REPORT, supra note 82, at 331-35; Definition of Federally Permitted Release Under Superfund, EPCRA Proposed by Agency, 19 Env't Rep. (BNA) 423 (July 29, 1988); Industries Object to Being Singled Out in Storm Water Rules for Toxic Chemical Use, 22 Env't Rep. (BNA) 1792, 1792-93 (Nov. 22, 1991); Review of Right-to-Know Compliance Will Help on Air Toxics, Consultant Says, 23 Env't Rep. (BNA) 2870, 2870-71 (Mar. 5, 1993); SBA PETITION, supra note 142, at 1699-700. Return to text.

[446] The National Toxic Release Inventory; Preliminary Air Toxic Data, Subcommittee on Health and the Environment, U.S. House of Representatives, 101st Cong., 1st Sess. (1989) (using preliminary 1987 data released by Congressman Henry Waxman during Clean Air Act reauthorization debates to help illustrate the scope of legal toxic dumping into the air); 1987 TRI REPORT, supra note 195 (providing the EPA's first national report on the first year of TRI data collected, 1987, and containing extensive analyses, maps, charts, and graphs); 1988 TRI REPORT, supra note 377 (using 1987-88 data, EPA's second annual report documents the nation's TRI releases, providing extensive charts, tables, maps, and figures and including discharge data for top polluters and a partial toxicity matrix for TRI chemicals); 1989 TRI REPORT, supra note 82 (using 1989 data, the EPA's third national report is similar but more extensive than the previous report, and includes similar facility-specific and partial chemical toxicity data); 1991 TRI REPORT, supra note 238 (providing the first part of the EPA's fourth national report and including extensive analysis by industry, chemical, region, year, etc.); U.S. ENVIRONMENTAL PROTECTION AGENCY, STATE FACT SHEETS (May 1993) (EPA 745-F-93-002) (providing the second part of the EPA's fourth national report based on 1991 data and containing state fact sheets which show top chemicals and facilities by state); 1992 TRI REPORT supra note 67 (providing first part of the EPA's fifth national report, including more detailed year-to-year comparisons than previous reports); U.S. ENVIRONMENTAL PROTECTION AGENCY, STATE FACT SHEETS (Apr. 1994) (EPA 745-F-94-001) (providing the second part of the EPA's fifth national report based on 1992 data and containing state fact sheets which show top chemicals and facilities by state); U.S. ENVIRONMENTAL PROTECTION AGENCY, THE TOXICS RELEASE INVENTORY: ENVIRONMENTAL DEMOCRACY IN ACTION (Jan. 1992) (EPA 700-F-92-001) (providing an eight page analysis describing the TRI program, diverse uses of the data and diverse roles of data users, public access and future directions of the program, including a bibliography of TRI reports); RESEARCH TRIANGLE INSTITUTE RESEARCH TRIANGLE PARK, ASSESSMENT OF CHANGES IN REPORTED TRI RELEASES AND TRANSFERS BETWEEN 1989 & 1990 (May 1993) (using 1989-90 data in an EPA-sponsored study to examine the extent to which reported improvements in emissions were related to cleaner production); GAO REPORT, supra note 262 (providing a review of the use and accessibility of the TRI data and recommending that the EPA include more emissions sources and chemicals in the TRI, increase compliance, and verify more emissions data). See Reports Using Toxics Release Inventory (TRI) Data, available in WORKING NOTES ON COMMUNITY RIGHT- TO-KNOW, JULY- AUGUST 1994 WORKING GROUP ON COMMUNITY RIGHT- TO-KNOW, available in RTK-NET, Entry No. 5962 (September 10, 1994). See also UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, CHEMICALS IN YOUR COMMUNITY: A GUIDE TO THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT (Sept. 1988); Appendicies 1-6. Return to text.

[447] 1989 TRI REPORT, supra note 82, at 316-20; 1991 TRI REPORT, supra note 238, at 319-24; 1992 TRI REPORT, supra note 67, at D-1 to D-9. The EPA branches which use TRI data include the Office of Air and Radiation (OAR), Office of Pollution Prevention and Toxics (OPPT), Office of Enforcement (OE), Office of Compliance Monitoring (OCM), Office of Solid Waste and Emergency Response (OWSER), and Office of Water (OW). 1991 TRI REPORT, supra note 238, at 319-24. For instance, OAR has used the TRI data for numerous tasks related to implementing the Clean Air Act Amendments of 1990 (CAAA), including identifying the number of facilities emitting a chemical and amount emitted to assist in setting research priorities for the 189 Hazardous Air Pollutants (HAPs) identified in the CAAA, estimating the major sources that might be affected by HAP regulations, taking TRI emissions from POTWs to establish maximum achievable control technology (MACT) standards required by the CAAA, helping state and local agencies to identify potential source categories of air toxics in their jurisdictions, aiding in identifying violations of national standards for lead emission, and as a measure for evaluating the progress of the CAAA in reducing air toxics. 1992 TRI REPORT, supra note 67, at D-2 to D-3. OPPT uses the TRI data to support EPA's Source Reduction Review Project (SRRP), an agency-wide effort to promote source reduction in the regulatory development process. Id. at D-3. It uses TRI data for risk screening, testing and pollution prevention activities in the agency's risk management assessment process. Id. at D-3 to D-4. OSWER uses TRI data in analyzing long-term trends and particular industry practices that warrant attention for its solid waste initiatives. Id. at D-4. The TRI data supplements other data sources to help in the development of the Office's enforcement priorities and as a means of establishing Superfund site location and liability by the Office. Id. OW uses TRI data to assist in identifying and prioritizing drinking water contaminants; screen possible sources of wellhead contamination, identify and quantify inputs of toxic chemicals to the Gulf of Mexico in a program directed at this body of water; identify industrial users with the greatest combination of toxic pollutants to city sewer systems; identify types and sources of pollutants discharged to publicly owned treatment works; develop effluent guidelines; and develop a national database of point source discharges that may result in sediment contamination. Id. at D-4 to D-5. Also note, the TRI database is among the approximately twelve Agency databases that are linked in the Agency's Integrated Data for Enforcement Analysis (IDEA) system. Id. at D-1. IDEA provides enforcement planners with complete compliance files of industry sectors and individual companies across the different statutes administered and enforced by EPA. Id. OE, OCM and EPA regional offices use the TRI data as a tool in inspection targeting and enforcement. 1991 TRI REPORT, supra note 238, at 321-22 (May 1993) (EPA 745-R-93-003). For instance, OCM and OE cross-check data collected under EPCRA and the Toxic Substance Control Act to identify facilities or types of business that reported for some but not all of the various EPA reporting regulations. TRI data aids OE in developing enforcement initiatives, helping it to distinguish between industrial sectors based on risk, types of chemicals emitted, total pounds released, types of releases, and average pounds released per facility. Id. at 322.

Various EPA regional offices use the TRI data for pollution prevention efforts, compliance reviews, inspection, and enforcement targeting purposes, and risk screening. Id. at 323. For instance, EPA Region IV used TRI data with other data sources to develop toxicological profiles of two Kentucky towns to enable it to identify areas of high, medium, and low potential risk. 1989 TRI REPORT, supra note 82, at 316-19. Regions with coastal borders have used the data to assess coastal water pollution problems and develop regional strategies. Id. EPA Region III has used the TRI data in connection with its Chesapeake Bay program to update the database concerning toxic chemicals entering the Bay basin and to assist in the development of runoff models from point sources and non-point sources entering the Bay. Id. Return to text.

[448] The program was originally the Industrial Toxics Project. PROGRESS REPORT, supra note 261, at 17. The project was proposed as part of the EPA's stated strategy to implement the Pollution Prevention Act of 1990. 56 Fed. Reg. 7849. The strategy called for setting forth a program that would achieve objectives in pollution prevention within a reasonable time frame. Id. To address this objective the strategy included a plan to target fifteen to twenty high-risk chemicals that offered opportunities for prevention and set a voluntary goal of reducing environmental releases of the chemicals by thirty-three percent by the end of 1992, and at least fifty percent by 1995. Id. at 7850. Return to text.

[449] 1989 TRI REPORT, supra note 82, at 318. The EPA used the 1989 TRI data to develop its list of priority companies, and the TRI reports from the following years were intended to be used to measure the success of the program. Id. The EPA targeted seventeen chemicals known for their significant health and environmental effects, potential exposure, and production volume, and included benzene, cadmium and compounds, carbon tetrachloride, chloroform, chromium and compounds, cyanides, dichloromethane, lead and compounds, mercury and compounds, methyl ethyl ketone, methyl isobutyl keotone, nickel and compounds, tetrachoroethylene, toluene, trichloethane, trichlorethylene, and xylenes. The EPA invited more than 7600 companies to participate in the program. 1991 TRI REPORT, supra note 238, at 245-46. The seventeen chemicals comprised twenty-three percent of all TRI releases and transfers and forty percent of all TRI chemicals released to the air. Id. at 257. The EPA initially invited the companies with the greatest amounts of releases and transfers, the "Top 600," but later expanded its invitation to 7600 companies. Id. Return to text.

[450] Bush Administration EPA head William K. Reilly is quoted as saying "this program could set the pace for a new cooperative way of addressing the nation's environmental goals." Keith Schneider, Knowledge of Polluters is Power, N.Y. TIMES, March 24, 1991. The voluntary nature of the 33/50 program was meant to establish a new relationship between government and industry which Reilly was confident would achieve environmental protection goals more efficiently than regulation. The project originated from August 1989 meetings held by EPA Administrator Reilly with the CEOs of nine major companies to seek voluntary emissions reductions. EPA Launches Industrial Toxics Project, Preventing Pollution? Depleting Grassroots Resources? Or Filling a Regulatory Void?, available in RTK-NET, Entry No. 1945 (June 2, 1991). Return to text.

[451] The EPA's TRI report for 1991 released in 1993 by the Clinton Administration EPA stated that "the Program . . . can augment the Agency's traditional command-and-control approach by achieving targeted reductions more quickly than would regulations alone" and noted that the program "seeks to instill a pollution prevention ethic throughout the highest echelons of American businesses." 1991 TRI REPORT, supra note 238, at 245. The deputy assistant administrator for policy, planning, and evaluation at the EPA told participants at an energy industry luncheon that the Agency generally wishes to move away from the "police culture" of regulation and wants to emphasize "compliance assistance" over compliance enforcement. Five-Year Agency Plan Includes Strategies On Environmental Justice, Ecosystem Protection, 25 Env't Rep. (BNA) 449 (July 1, 1994). Return to text.

[452] In 1993, when the EPA issued the TRI for 1991 calendar year, it declared the 33/50 program's interim goal of thirty-three percent national reduction had been reached a full year ahead of schedule. It reported that for 1991, a thirty-four percent reduction in the high priority chemicals had been accomplished, slashing releases from 1.474 billion pounds in 1988 to 973 million pounds in 1991, a 501 million pound reduction. 1991 TRI REPORT, supra note 238, at 243. In 1994, the EPA's TRI predicted that there was a trend toward early attainment of the 1995 goal of fifty percent reduction. 1992 TRI REPORT, supra note 67, at 262. Return to text.

[453] According to two reports by the Citizens Fund, a major flaw of the 33/50 program included its skewed definition of pollution prevention and allowing waste reduced through end-of-pipe pollution control methods to count toward program goals for pollution prevention. CITIZENS FUND, POLLUTION PREVENTION OR PUBLIC RELATIONS?: AN EXAMINATION OF EPA'S 33/50 PROGRAM 1, 3, 11 (May 1994) [hereinafter CITIZEN FUND I]; CITIZENS FUND, POISONS IN OUR NEIGHBORHOODS: TOXIC POLLUTION IN THE UNITED STATES, VOLUME II: NATIONAL OVERVIEW 25 (November 1993) [hereinafter CITIZEN FUND II]. They alleged that 33/50 is little more than a measure of reductions in TRI releases and transfers and not of pollution prevention. CITIZEN FUND I, supra, at 10. Any reductions companies report in releases and transfers of the seventeen chemicals, whether they are achieved by pollution prevention or pollution control, count toward the 33/50 targets. Id. at 10-11. The report noted that the 33/50 program's flawed definition of pollution prevention contradicted the definition of the Pollution Prevention Act of 1990 and the EPA's general pollution prevention policy. Id. The Citizens Fund surveyed participants in the 33/50 program and found they confused pollution prevention with pollution control in reporting reductions in their releases and transfers. Id. at 12.

The 1992 TRI appears to confirm the suspicion of the Citizens Fund that 33/50 program chemicals were not being reduced at the source, the proper definition of pollution prevention, but rather that the chemicals were being shifted into wastes. The inventory reported that while releases and transfers of the 33/50 chemicals were reduced significantly between 1991 and 1992, total production wastes associated with the chemicals increased between 1991 and 1992. 1992 TRI REPORT, supra note 67, at 263. It added that these wastes were projected to decline between 1993 and 1994. Id. The Citizens Fund contended that it was difficult to distinguish reductions that are truly voluntary from those that might have occurred because of pollution control regulations. CITIZEN FUND II, supra, at 25. Since chemicals on the 33/50 list are recognized for causing important health and environmental damage, they are more likely to be regulated under federal and state environmental and workplace laws and regulations. Id. at 26. For example, 1,1,1-trichloroethane will be banned in 1996 because it is an ozone depleter. Id. Benzene is regulated as a hazardous air pollutant under the Clean Air Act. Id. The so-called voluntary reductions claimed to be achieved by the 33/50 Program were also regarded as attributable to embarrassment and fear over public reaction and potential regulation resulting from the disclosure of massive releases of the seventeen chemicals compelled by the TRI inventory information. CITIZEN FUND I, supra, at 25.

A report by still another environmental coalition contends that the TRI-based voluntary program was used to stall further regulation, including mandatory pollution prevention. PROGRESS REPORT, supra note 261, at 17. It pointed out that the Bush Administration EPA Administrator had testified against mandatory programs in proposed right-to-know legislation. Id. See also Voluntary Pollution Prevention Program Labeled 'Sham' by Environmental Group, 25 Env't Rep. (BNA) 280 (June 10, 1994); Coalition Advocates Greater Public Role in Controlling Hazards of Toxic Chemical Use, 23 Env't Rep. (BNA) 1112 (July 31, 1992); Report Says Relatively Few Companies Join Voluntary Effort to Cut Chemical Emission, 23 Env't Rep. (BNA) 1507-08 (Oct. 2, 1992); EPA Launches Industrial Toxics Project, Preventing Pollution? Depleting Grassroots Resources? Or Filling a Regulatory Void?, available in RTK-NET, Entry No. 1945 (June 2, 1991); Sanford Lewis, Corporate Volunteerism: 1,000 Points of Blight, available in RTK-NET, Entry No. 2186 (Nov. 23 1991) (noting environmental groups such as the National Toxics Campaign and Greenpeace assert that the EPA should completely ban many of these chemicals, not merely ask corporations to reduce their emissions and that the EPA's effort implicitly commits the agency not to exercise its regulatory power to ban voluntary reduction chemicals during the intervening five years).

Many states have included the 33/50 chemicals within the framework of pollution prevention and reduction programs existing prior to the establishment of the 33/50 program and others have used it as a model for new pollution prevention and reduction initiatives. 1991 TRI REPORT, supra note 238, at 243. Return to text.

[454] The states which have produced secondary reports using TRI data or reports on yearly TRI releases and transfers include Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, New Jersey, New York, Ohio, Oregon, Pennsylvania, Utah, Virginia, Washington, and Wisconsin. Reports Using Toxics Release Inventory (TRI) Data, WORKING NOTES ON COMMUNITY RIGHT- TO-KNOW, JULY- AUGUST 1994 "WORKING NOTES," available in RTK-NET, Entry No. 5962 (September 10, 1994). City and regional governmental reports have also been published using the TRI data. Id. New Jersey publishes a community action packet kit entitled Toward a Toxic Free Environment in New Jersey for anti-toxics, safety and prevention efforts. Organizing and Using Environmental Data, available in RTK-NET, Entry No. 200 (June 12, 1991). See also Survey Assesses State Programs, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW, MAY-JUNE 1994, available in RTK-NET Entry No. 5839 (July 9, 1994). At least thirty-four states have entered at least one year's TRI data into a computer database, at least twenty-six generate customized database reports, at least twenty provide data runs for the public and at least six allow direct public access to the computerized database. 1991 TRI REPORT, supra note 238, at 324. Return to text.

[455] PROGRESS REPORT, supra note 261, at 18-19. See also Florio Signs Pollution Prevention Bill With Goal To Cut Hazardous Releases By Half, 22 Env't Rep. (BNA) 1035 (Aug. 9, 1991) (reporting enactment of pollution prevention legislation in New Jersey which covers facilities required to report TRI data). Return to text.

[456] GAO REPORT, supra note 262, at 23. In 1989, Oregon and Massachusetts enacted the first laws in the nation mandating reductions in the use of toxic chemicals. The Oregon law requires all companies that submit TRI reports and hazardous waste generators to set goals to reduce pollution by 1991 and small generators to do so by 1992. The Massachusetts statute establishes a statewide goal of a fifty percent reduction in industrial toxic waste generation by 1997. Id. In response to the TRI data Minnesota enacted the Minnesota Toxic Pollution Prevention Act of 1990. 1991 TRI REPORT, supra note 238, at 308. States also use the TRI data as elements of their pollution prevention legislation, such as Illinois and the District of Columbia. Id. at 308-09. Return to text.

[457] 1989 TRI REPORT, supra note 82, at 308-12. See ERIN, supra note 434 (reporting that the TRI data is used by at least thirty-four state agencies to track toxic chemical emissions, thirty-three states to enforce environmental programs, twenty-four states to regulate toxic chemicals, nineteen states to screen health risks, eighteen states to screen environmental risks, and eighteen states to conduct pollution prevention projects). See also 1991 TRI REPORT, supra note 238, at 324-25; 1992 TRI REPORT, supra note 67, at D-7 to D-9. Return to text.

[458] 1989 TRI REPORT, supra note 82, at 311. Return to text.

[459] See ERIN, supra note 434. Return to text.

[460] For example, Texas uses the TRI data to monitor the state's water and air dischargers for additional compliance and inspection, Delaware reviews the TRI data to determine if reporting facilities are also subject to its program for regulating extremely hazardous substances, and to cross-check air discharge permit levels, Oklahoma compares the TRI air data with point source emissions information to find inconsistencies, and Ohio cross-checks the TRI data to identify violators of its solid waste laws. 1991 TRI REPORT, supra note 238, at 312. Massachusetts environmental agencies used the data to select facilities that emitted large quantities of toxic chemicals in a region of the state and to secure compliance with various state and federal environmental regulations by these facilities. GAO REPORT, supra note 262, at 24. Return to text.

[461] Arizona used TRI data for analysis of a Phoenix neighborhood; California for a state comparative risk project; Connecticut to detect release trends in minority communities; Georgia in response to specific environmental equity concerns; Louisiana to compare facilities and releases with the location of low-income communities in East Baton Rouge Parish (county), and South Carolina by the state Black Caucus to develop environmental equity legislation. 1992 TRI REPORT, supra note 67, at D-9. Return to text.

[462] 1989 TRI REPORT, supra note 82, at 313. Return to text.

[463] Id. at 314. Utah's air toxics control program used TRI data to identify facilities, locations and chemicals for a more detailed risk assessment and also in its water pollution control program to identify water bodies affected by toxic chemical discharges. Minnesota had undertaken a project to make use of multiple pollution release databases to identify areas for more detailed risk assessment. Id. Arizona, in conjunction with the federal Public Health Service, created a program entitled "Healthy People 200" which establishes goals to reduce human exposure to toxic agents by reducing the total pounds of these agents released into the environment. 1992 TRI REPORT, supra note 67, at D-7 to D-8. The data comes, in part, from the TRI. Id. Return to text.

[464] 1989 TRI REPORT, supra note 82, at 315 (giving Minnesota and Texas as examples). Return to text.

[465] Id. at 314 (noting that states including Illinois, Louisiana, New Jersey, New York, Minnesota, and Virginia have prepared annual reports on the volume and nature of releases and transfers within their borders, by facility and geographical place). Return to text.

[466] Ann M. Thayer, Growing Exchange of Information Spurs Pollution Prevention Efforts, CHEMICAL AND ENGINEERING NEWS 8 (July 26, 1993). Return to text.

[467] See Organizing and Using Environmental Data, Responding to Reduction Claims, available in RTK-NET, Entry No. 249 (July 26, 1989). Return to text.

[468] Compliance With Right-to-Know Advised Although Payoff Is Not Immediately Obvious, 18 Env't Rep. (BNA) 1035 (Aug. 14, 1987) (reporting on the remarks of IBM executive Khristine Hall). Return to text.

[469] EPA Official Advises Industry to Begin Local Public Dialogue Before Releasing Data, 17 Env't Rep. (BNA) 1799 (Feb. 20, 1987) (reporting on remarks by Bush Administration EPA assistant administrator for pesticides and toxic substances, John A. Moore). Return to text.

[470] Prepare Now for Public's Questions on Emissions Data, EPA Official Recommends, 18 Env't Rep. (BNA) 1561, 1561-62 (Oct. 16, 1987). Return to text.

[471] Du Pont Chairman Sees Need to Build Consensus on 'Right Response' to Environmental Problems, 17 Env't Rep. (BNA) 1227 (Nov. 21, 1986) (quoting Richard E. Heckert, CEO of DuPont). See also Petroleum Industry Faces Problems in Complying with EPCRA, API Head Says, 19 Env't Rep.(BNA) 303 (July 1, 1988) (reporting that the head of the American Petroleum Institute fears citizens may overreact to chemical release data for petroleum industry and advises members to put a good face on the data.) Return to text.

[472] Industry representatives constituted nearly half (48.8%) of the users of the TRI public data base during the first fifteen months of operation according to the National Library of Medicine (NLM), which manages the database. GAO REPORT, supra note 262, at 37, 72. NLM reports that for the balance, research centers constituted 25.4% of the users, the federal government 12.6%, private citizens 7.7% and states governments 5.5%. Id. at 37. Return to text.

[473] Companies Producing Environmental Reports to Counter Publicity Over EPCRA Release Data, 23 Env't Rep. (BNA) 3090 (Apr. 2, 1993). They include Monsanto, Du Pont, Amoco, and General Electric. Id. at 3090-91. Monsanto prints 100,000 copies of an annual report describing its progress in pollution prevention and reduction. Id. at 3090. Return to text.

[474] Mary Beth Regan, An Embarrassment of Clean Air, BUS. WK., May 31, 1993, at 34. Return to text.

[475] Timothy Noah, EPA to Expand List of Chemicals on Toxic Report, WALL ST. J., Jan. 1, 1994, at B5. A spokesman at a Louisiana American Cyanamid plant has noted that because of the TRI reporting "there is much more public pressure for us to reduce discharges." Keith Schneider, For Communities, Knowledge of Polluters is Power, N.Y. TIMES, March 24, 1991, at E5. Return to text.

[476] The 1987 national TRI report does not provide a list of companies with the largest TRI releases and transfers but the 1988 report does, and it showed Monsanto to be the second largest behind DuPont. 1988 TRI REPORT, supra note 377, at 172. Monsanto reported releases and transfers of over 201 million pounds of TRI chemicals. Id. Return to text.

[477] Regan, supra note 474, at 34. Return to text.

[478] Id. By 1990, Monsanto had cut its toxic air emissions fifty-eight percent compared to 1987 levels; and in 1993, Monsanto proclaimed that the 1992 data, when compiled, would show it made its ninety percent goal. John W. Johnstone, Chemical Industry Cleans Up Its Act, FORUM FOR APPLIED RESEARCH AND PUBLIC POLICY 65, 66 (Spring 1993). See also Appendix 3 (listing Monsanto Co. as the sixth largest Parent Company for total TRI releases, releasing over fifty-five million pounds). Return to text.

[479] Such programs mounted by business associations and government agencies, often in partnership, include Green Lights, WasteWi$e, Energy Star, Green Sectors, WAVE, NICE3, Design for the Environment, Climate Wise, Motor Challenge, and MERIT (Mutual Efforts to Reduce Industrial Toxics). CITIZENS FUND, POLLUTION PREVENTION . . . OR PUBLIC RELATIONS: AN EXAMINATION OF EPA'S 33/50 PROGRAM 5 (May 1994); Five-Year Agency Plan Includes Strategies on Environmental Justice, Ecosystem Protection, 25 Env't Rep. (BNA) 449 (July 1, 1994). WasteWi$e was launched by the EPA and asks companies "to set specific recycling and waste reduction goals." More Than 280 Companies Join Effort to Reduce, Reuse, Recycle Waste, EPA Says, 25 Env't Rep. (BNA) 529 (July 22, 1994). By mid-summer 1994, more than half of the Fortune 500 companies had joined. Id. Return to text.

[480] Finto, supra note 362, at 13. Return to text.

[481] Johnstone, supra note 478, at 65 (that author is chairman of Olin Corporation and the Chemical Manufacturers Association). Return to text.

[482] Id. Return to text.

[483] Id. Return to text.

[484] Id at 69. The stated goals of Responsible Care committed CMA members to "be safe and environmentally responsible" in making, transporting, storing, using, and disposing of chemicals; "to respond to community concerns about chemicals and operations;" to help communities respond to chemical emergencies; and to "keep the public and government officials informed about chemical-related health and environmental" dangers. CAROLYN HARTMANN, U.S. PUBLIC INTEREST RESEARCH GROUP, TRUST US DON'T TRACK US: AN INVESTIGATION OF THE CHEMICAL INDUSTRY'S "RESPONSIBLE CARE" PROGRAM 7 (March 1992). Return to text.

[485] Johnstone, supra note 478, at 69. Return to text.

[486] Id. Return to text.

[487] CMA Advises Firms to Go Beyond Compliance With Title III Mandates To Avoid Problems, 18 Env't Rep. (BNA) 1327 (Sept. 11, 1987). The head of CMA's Title III coordinating committee warned that if the chemical industry could not further explain or interact with the public about upcoming TRI data, the public could demand tighter air emissions controls, legislation mandating waste minimization more stringent hazardous waste disposal restrictions, ground water protection measures, more extensive control of hazardous waste transportation, toxic chemical compensation laws, chemical specific facility permits and more stringent controls on chemical process design and safety. Id. at 1328. Return to text.

[488] One survey of 1000 reporting facilities found that over half had made one or more operational changes resulting from the TRI program. See ERIN, supra note 434 (referring to a 1989 study by the United States General Accounting Office but not providing a citation). The types of changes reported, in order of frequency, were: improved inventory controls (thirty-nine percent); a switch to alternative chemicals (thirty-two percent); improved chemical use controls (thirty-one percent); improved equipment efficiency (twenty-three percent); changed manufacturing processes (twenty-one percent); reduced point source emissions (twenty percent); and reduced fugitive emissions (twelve percent). Id. at Attachment A. Return to text.

[489] See Regan, supra note 474, at 34. Return to text.

[490] TRI Emissions From Chemical Plants Decreased in 1992, Industry Study Says, 24 Env't. Rep. (BNA) 2106 (Apr. 15, 1994). Return to text.

[491] Id.; David Hanson, Toxics Release Inventory Data Show Steady Drop in Emissions, CHEMICAL AND ENGINEERING NEWS 14 (June 14, 1992). Return to text.

[492] GERALD V. POJE & DANIEL M. HOROWITZ, NATIONAL WILDLIFE FEDERATION, PHANTOM REDUCTIONS: TRACKING TOXIC TRENDS 1 (August 1990); CITIZENS FUND, POISONS IN OUR NEIGHBORHOODS: TOXIC POLLUTION IN THE UNITED STATES, VOLUME I: NATIONAL OVERVIEW 17 (November 1993). Return to text.

[493] Assessing Those Changes, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW, SEPTEMBER-OCTOBER 1993, available in RTK-NET Entry No. 4689 (October 30, 1993) (noting that Monsanto was given credit for preventative changes). Return to text.

[494] CITIZENS FUND, POISONS IN OUR NEIGHBORHOODS: TOXIC POLLUTION IN THE UNITED STATES, VOLUME I: NATIONAL OVERVIEW 25 (NOVEMBER 1993). Return to text.

[495] U.S. Manufacturers Not Doing Enough to Prevent Pollution, Group Charges, 24 Env't Rep. (BNA) 1338, 1338-39 (Nov. 19, 1993). Return to text.

[496] Studies Expose Phantom Reductions, Assessing the Rush to Reduce, available in RTK-NET, Entry No. 1942 (April 25, 1991). A report entitled PRESENT DANGERS . . . . HIDDEN LIABILITIES "examined data from Union Carbide facilities across the country," and found that reported toxic release and transfers "declined under the toxics-release inventory (TRI) while increasing under RCRA . . . . Union Carbide generated over 300 million pounds of hazardous waste in 1988 - an increase of more than 70 million pounds" from the year before. Id. This sharp increase far offset the decrease of 10 million pounds in emissions of reported under the TRI. Id. Return to text.

[497] HARTMANN, supra note 484, at 3-4. U.S. PIRG conducted a survey of 192 CMA member facilities in twenty-eight states to investigate commitments by these firms to keep the public informed about chemical-related hazards. It found that at eighty-one facilities, or forty-two percent, callers were unable to reach anyone to answer their questions despite repeated attempts. Id. Return to text.

[498] Magazine Squelches Investigation, WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW, SEPTEMBER-OCTOBER 1994, available in RTK-NET, ENTRY No. 6929 (November 9, 1994). Ashland executives lobbied the American Chemical Society (ACS) to kill publication in the Chemical and Engineering News magazine of a year-long investigation into pollution at Ashland Oil's Catlettsburg, Kentucky, refinery. The ACS is a scientific organization which seeks to serve the professional interests of chemists and has 150,000 readers, split nearly evenly between academia and industry, and it publishes the magazine. Id. A top Ashland executive flew to the ACS Washington, D.C., headquarters to stop publication of the story by the group's newsmagazine. The refinery, the nation's thirteenth largest, "has a long history of environmental violations and poor relations with the surrounding community." It lacked a valid operating permit for decades and polluted the Big Sandy and Ohio rivers. Its air emissions far exceed similar refineries. The company had been fined for many air quality and other violations, and because the plant sits in a valley it is the source of pollutants that are frequently trapped in air inversions. Fallout of powdery soot and other problems have spurred lawsuits involving over 1000 plant neighbors. The company has been accused of not practicing what is preached by the Responsible Care Program and its own propaganda, by inundating the local media with public relations extolling the company as a good neighbor, donating to local schools and charities, while generally resisting protests to clean up. Id. Return to text.

[499] ERIN, supra note 434. Return to text.

[500] WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: MARCH-APRIL "WORKING NOTES" NEWSLETTER, available in RTK-NET, ENTRY No. 10109 (May 24, 1995). Return to text.

[501] Id. Return to text.

[502] H.R. 450, 104th Cong., 1st Sess. (1995). The bill passed the House on February 24, 1995 by a vote of 276-146. The house bill was formally titled the Regulatory Transition Act of 1995 and given the popular titles of Contract with American bill and Regulatory Freeze bill. It was referred to the Senate Committee on Governmental Affairs. It provides certain emergency exceptions for presidentially designated imminent threats to health or safety, or actions necessary for the enforcement of criminal laws. The bill also would authorize civil actions by anyone adversely affected by any conduct of a federal agency in violation of the moratorium. Return to text.

[503] S. 219, 104th Cong., 1st Sess. 103 (1995). Return to text.

[504] CITIZENS FOR SENSIBLE SAFEGUARDS, available in RTK-NET, Entry No. 10178 (June 9, 1995). Return to text.

[505] Id. Return to text.

[506] Id. Return to text.

[507] Risk assessment involves using data, assumptions and models to estimate the probability of harm to human health and the environment that may result from exposures to specific hazards, such as toxic and hazardous chemicals in the environment. G. TYLER MILLER, JR., LIVING IN THE ENVIRONMENT: CONCEPTS, PROBLEMS AND ALTERNATIVES 533 (1975). Return to text.

[508] H.R. 9, 104th Cong., 1st Sess. (1995). H.R. 9 is the Job Creation and Wage Enhancement Act of 1995. The Risk Assessment and Cost-Benefit Act of 1995 made up Division D of HR 9 and requires all government agencies to conduct risk assessment and cost-benefit analyses for every major rule or regulation. Division D incorporates the text of a bill originally known as HR 1022, 104th Cong., 1st Sess. (1995). The risk assessment and cost-benefit measure passed the House on March 3, 1995, by a 277-141 vote and was referred to the Senate Committee on Governmental Affairs. Return to text.

[509] S. 343, 104th Cong., 1st Sess. 622 (1995). Return to text.

[510] Initially the Dole bill competed in the Senate with S. 291, introduced by Senator Roth (R-Del). S. 291, 104 Cong., 1st Sess. The Roth measure was labeled as Contract with America legislation, given the popular title of "Regulatory Overhaul Bill," and was labeled formally as the "Regulatory Reform Act of 1995." The Roth measure was reported out of the Senate Committee on Governmental Affairs in late May and set for a vote in the Senate. The two bills were similar in many respects, but the Dole bill was tougher and to the right of the Roth bill. RTK-NET, Entry No. 10185 (June 12, 1995). The major difference is that the Dole bill established a lower threshold for the amount of monetary economic impact used to trigger extensive agency cost-benefit and risk assessment analysis, using $50 million as compared to $100 million in the Roth measure. This meant that more federal regulations would be subject to the review process. Return to text.

[511] WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: MARCH-APRIL "WORKING NOTES" NEWSLETTER, available in RTK-NET, Entry No. 10109 (May 24, 1995). Return to text.

[512] Addition of Certain Chemicals; Toxic Chemical Release Reporting; Community Right-to-Know, 59 Fed. Reg. 61432, 61471 (1994) (to be codified at 40 C.F.R. § 372). The EPA estimated the total costs to industry of adding the new chemicals to the TRI list at approximately $99 million the first year and $49 million each year afterward. Id. The EPA's costs were estimated to be $1 million a year. Id. Return to text.

[513] WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: MARCH-APRIL "WORKING NOTES" NEWSLETTER, available in RTK-NET, Entry No. 10109 (May 24, 1995). Return to text.

[514] Id. Return to text.

[515] LATEST ON REGULATORY REFORM BILL, CITIZENS FOR SENSIBLE SAFEGUARDS, available in RTK-NET, Entry No. 10248 (June 26, 1995). The bills require that any decision likely to cost the economy more than $100 million must be accompanied by a full peer review of outside experts. But the OMB can require peer review even if the costs don't reach $100 million. House Passes Costly Risk Assessment Bill, RACHEL'S ENVIRONMENT & HEALTH WEEKLY #435, March 30, 1995, available in RTK-NET, Entry No. 9941 (March 29, 1995). Return to text.

[516] WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: MARCH-APRIL "WORKING NOTES" NEWSLETTER, available in RTK-NET, Entry No. 10109 (May 24, 1995). Return to text.

[517] House Passes Costly Risk Assessment Bill, RACHEL'S ENVIRONMENT & HEALTH WEEKLY #435, March 30, 1995, available in RTK-NET, Entry No. 9941 (March 29, 1995) [hereinafter House Passes Bill]; Dole/Johnston Regulatory Reform Bill, CITIZENS FOR SENSIBLE SAFEGUARDS, available in RTK-NET, Entry No. 10250 (June 26, 1995) [hereinafter Dole/Johnston Bill]. Return to text.

[518] WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: MARCH-APRIL "WORKING NOTES" NEWSLETTER, available in RTK-NET, Entry No. 10109 (May 24, 1995). Return to text.

[519] Id. Return to text.

[520] Dole/Johnston Bill, supra note 517. Return to text.

[521] Id. Return to text.

[522] Id. Return to text.

[523] House Passes Bill, supra note 517; Dole/Johnston Bill, supra note 517. Return to text.

[524] In the Main Ring Dole "Reg Reform" Bill Heads to Senate Floor, available in RTK-NET, Entry No. 10221 (June 19, 1995). The bills have also been criticized as "budget busters." Id. Critics contend that the EPA alone will require an additional $220 million every year to carry out the risk assessment and cost-benefit analysis, and it is only one agency affected by the legislation. Id. Moreover, the legislation is seen as a red tape monster, forcing government to expand rather than streamline. Id. It is estimated that the EPA will need an additional 1000 employees to carry out the mandates. Id. Return to text.

[525] WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: MARCH-APRIL "WORKING NOTES" NEWSLETTER, available in RTK-NET, Entry No. 10109 (May 24, 1995). Return to text.

[526] Dole/Johnston Bill, supra note 517. Johnston initially sought to soften portions of the Dole bill. RTK-NET, Entry No. 10200 (June 12, 1995). See also RTK-NET, Entry No. 10233 (June 23, 1995); Riding the Wild Senate Roller Coaster of Politics, available in RTK-NET, Entry No. 10239 (June 23, 1995). Return to text.

[527] For example, in the 1992 national report release by EPA Louisiana had the highest total releases of any state, over 464 million pounds of toxic chemicals. 1992 TRI REPORT, supra note 67, at 35. See also Appendicies 1-4. Return to text.

[528] REGULATORY REFORM UPDATE, available in RTK-NET, Entry No. 10200 (June 12, 1995). Return to text.

[529] Action Alert, Proposed Legislation to Weaken Food Safety Standards, PESTICIDE ACTION NETWORK, June 27, 1995, available in RTK-NET, Entry No. 10258 (June 27, 1995). Return to text.

[530] Diary, Yesterday in Washington, N.Y. TIMES, June 28, 1995, at A16; John H. Cushman Jr., Efficient Pollution Rule Under Attack: Requirement to Disclose Toxic Emissions Led to Big Reductions, N.Y. TIMES, June 28, 1995, at A16. Return to text.

[531] Stealth Attack Expected on Right-to-Know, available in RTK-NET, Entry No. 10245 (June 25, 1995). Return to text.

[532] Id. An even more draconian delisting had been proposed in an early spring amendment to the regulatory reform legislation by Senator Trent Lott (R-Mississippi). WORKING NOTES ON COMMUNITY RIGHT-TO-KNOW: MARCH-APRIL "WORKING NOTES" NEWSLETTER, available in RTK-NET, ENTRY No. 10109 (May 24, 1995). Lott would have effectively ended the TRI program altogether. Id. Lott's amendment called for automatic removal of any chemical from the TRI list if the EPA failed within 60 days to prove it caused health problems beyond the plant gates. Id. This would have been nearly impossible for the EPA to do. The amendment failed to be considered by the full Senate Energy Committee. Id. Return to text.

[533] The Dole/Johnston Regulatory Reform Bill, CITIZENS FOR SENSIBLE SAFEGUARDS, available in RTK-NET, ENTRY No. 10254 (June 27, 1995). Return to text.

[534] Dole Hits Threat of Regulatory Veto, BOSTON GLOBE, June 27, 1995, at 62. CITIZENS FOR SENSIBLE SAFEGUARDS, White House Veto Threat, available in RTK-NET, Entry No. 10248 (June 26, 1995). Return to text.